Opinion
NO. 01-16-00070-CR
03-30-2017
VERNON EARL BROOKS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court Harris County, Texas
Trial Court Case No. 1457957
MEMORANDUM OPINION
A jury convicted appellant, Vernon Earl Brooks, of the first-degree felony offense of murder and, after finding the allegations in two enhancement paragraphs true, assessed punishment at fifty years' confinement. In two issues, appellant contends that (1) the trial court erred by instructing the jury to determine whether a particular witness was an accomplice as a matter of fact, when she was an accomplice as a matter of law; and (2) the State failed to present sufficient non-accomplice evidence corroborating the testimony of the accomplice witnesses.
See TEX. PENAL CODE ANN. § 19.02(b) (West 2011).
We affirm.
Background
Appellant and Sergio Saldana, the complainant, had crossed paths at least once before Saldana's murder on September 25, 2012. Saldana's friend Richard Deviller testified that he got into a disagreement with appellant in 2012 over a truck while they were both at a gas station playing on the electronic gambling machines. Saldana was also present and became involved in this disagreement. Saldana and appellant went outside of the gas station, and Saldana fired a gunshot that hit appellant in the foot. Stella Preece, appellant's girlfriend, confirmed this incident and testified that appellant told her that Saldana shot appellant in the foot and tried to take their truck. Stella did not know when this incident occurred relative to Saldana's murder.
In September 2012, Michael Hourshad and his roommate, Brandon, lived in a house in Baytown that Hourshad had inherited from his grandparents, and they were both involved in the sale of drugs. Saldana occasionally purchased heroin from Brandon. On the morning of September 25, Brandon's girlfriend, Julie, informed Brandon and Hourshad that Saldana planned to rob them. Brandon and Julie left the house shortly after lunchtime, after debating what to do about Saldana, but Hourshad remained, as he was familiar with Saldana and did not feel threatened by him.
After Brandon and Julie left, Hourshad began reconsidering his decision to stay in the house alone. Hourshad was friends with Tara Brown, and he would occasionally purchase methamphetamines from her and her boyfriend, Joseph Bailey, to resell. Hourshad knew that Brown was "more involved with the drug world," so he reached out to her and asked if he ought to be worried about Saldana. When Hourshad told Brown that Saldana was coming over to his house, Brown responded that Hourshad did not need to be worried, but she offered to come by the house with Bailey if that would help ease Hourshad's mind.
At some point in the afternoon, Saldana arrived at Hourshad's house. Hourshad, who recognized the signs of heroin withdrawal due to his roommate, thought that Saldana looked like he was experiencing withdrawal symptoms. Saldana asked Hourshad if he could "stay to get his fix," and Hourshad agreed. Saldana consumed heroin and both men ingested methamphetamines. Hourshad spoke with Saldana about his alleged plan to rob Hourshad, and Hourshad determined that he did not have anything to worry about. During this time, Hourshad exchanged text messages with Brown concerning Saldana. Brown asked Hourshad if Saldana was "a real big guy," and Hourshad responded, "Kind of[,] but things are okay they seem." Brown also asked Hourshad if he and Saldana were the only people at the house, and Hourshad responded that they were.
Brown and Bailey also arrived at Hourshad's house and stayed for around ten or fifteen minutes before leaving. Neither Brown nor Bailey informed Hourshad why they were leaving. Shortly after they left, Brown sent Hourshad another text message stating, "Don't worry[,] we'll be right back[.] [W]hat are y'all doing[?] [L]eave the door unlocked[.]" Hourshad responded to Brown's text and told her that he would leave the door unlocked. Brown texted back, "Thank you[.] [J]ust don't stand by the door[,] ok[.] [I]s he still on the couch[?]" Hourshad responded in the affirmative. Brown then texted, "There are about to be three people coming in, don't be by the door or by him, don't worry." Hourshad did not immediately receive this text.
Hourshad and Saldana moved into a bedroom to play video games. While they were in the bedroom, people burst in the house with guns and yelled at Hourshad to "get down." The only person Hourshad recognized was Bailey. Hourshad got down and covered his face, and he could hear yelling and sounds like someone's being punched. He then heard three or four gunshots, and he testified that "[i]t sounded like they were hitting [Saldana]." After the gunshots, one of the gunmen approached Hourshad brandishing a weapon and demanded to know if Hourshad had seen their faces. Hourshad did not recognize this man, and he stated that he would not be able to identify him. After the men left, Hourshad stood up and saw Saldana lying on the floor. Hourshad waited for a few minutes after the men drove away and then called 9-1-1.
In February 2015, a jury convicted Bailey of Saldana's murder. A panel of this Court affirmed his conviction in March 2016. See Bailey v. State, No. 01-15-00215-CR, 2016 WL 921747, at *6-7 (Tex. App.—Houston [1st Dist.] Mar. 10, 2016, no pet.) (mem. op., not designated for publication). The State indicted appellant around the time of Bailey's conviction. Bailey did not testify in appellant's trial.
Hourshad testified that just before the ambulance arrived his cell phone stopped working. He had his phone with him at the police station, but he threw it away in a fast food bag. The last text message from Brown on Hourshad's phone, which Hourshad did not receive, read, "Erase my messages." Ultimately, Hourshad was charged with possession of a controlled substance and aggravated assault arising out of this incident; the assault charge was later dismissed.
Officers later located Hourshad's cell phone and extracted his text-message history from the phone.
Brown testified that Hourshad called her on September 25, 2012, and told her that someone was at his house and he was scared. Brown was with Bailey at the time, and they decided to go check on Hourshad. Brown asked Hourshad to describe the person who was at his house because she was not sure who was there and she did not know whether she and Hourshad were referring to the same person. Brown stated that she did not have a weapon with her when she went to Hourshad's house, and she did not know if Bailey had a weapon with him. She and Bailey spoke with Hourshad and Saldana for about fifteen or twenty minutes. Saldana was not acting in an aggressive manner at this time.
After they had been at Hourshad's house for a little while, Bailey stepped outside. When he came back inside, he told Brown that they needed to leave because someone he knew had run out of gas and they needed to pick him up. On the way to pick this person, Bailey instructed Brown to text Hourshad and tell him, "Don't worry[,] we'll be right back[.] [W]hat are y'all doing[?] [L]eave the door unlocked[.]" The person they picked up was appellant, whose truck had run out of gas. Appellant got in their vehicle, leaving two people to remain with his truck. Brown, Bailey, and appellant stopped by a nearby gas station to purchase gas, and approximately ten minutes later Brown and Bailey dropped appellant back off at his truck.
Brown and Bailey drove back to Hourshad's house, and another truck arrived at the house as well. Bailey got out of his truck carrying a 9mm handgun, and Brown saw two people get out of the other truck. Brown could see Stella Preece in the other vehicle, but Stella did not get out of the vehicle. Likewise, Brown remained in Bailey's truck while three people, with Bailey in the lead, went inside Hourshad's house. Brown heard two gunshots from inside the house. When Bailey came back to his vehicle, he was in a hurry to leave, but he was not panicking. Brown drove them both away from the scene. The State charged Brown with murder arising out of this incident, but this charge was ultimately dismissed.
On cross-examination, Brown testified that when Bailey came back to the vehicle he told Brown that everything was fine, that he had not done anything, and that appellant had shot Saldana.
Stella Preece testified that on September 25 she was with appellant, her younger sister, Rose Preece, and a friend, Joseph Kazee, at a gas station playing video poker. While they were at the gas station, appellant received a phone call. From what Stella could hear of the conversation, she knew that the call had "something to do with" Saldana. Based on the phone call, appellant decided to leave the gas station, and he told Stella they were going to meet Bailey. Stella, appellant, Rose, and Kazee all got into appellant's truck, which Stella described as a black truck with a red hood, and drove away.
Appellant started driving towards Baytown, and he told everyone in the car that they were going to meet Bailey and Brown. Stella "didn't know what was going to happen when we got to where [Bailey] was." She knew only that Saldana was going to be there as well, and, because of this uncertainty, she asked appellant to drop Rose off at the "river bottoms" along the San Jacinto River. After appellant dropped Rose off, appellant told Kazee that Saldana was going to be at the place where they were meeting Bailey and Brown.
Along the way, appellant's truck ran out of gas. Brown and Bailey came by and took appellant with them to get gas for the truck. Stella and Kazee stayed in appellant's truck. When appellant returned, he drove, following Brown and Bailey, to a house in Baytown. Stella knew they were going to where Saldana was, but she did not recognize the house at which they eventually stopped.
When they stopped, appellant and Kazee got out of the truck, and Bailey got out of his truck. The three men went inside the house. Stella did not see any of them carrying weapons. Stella remained inside appellant's truck, listening to the radio. Although she did not have a driver's license, at some point she moved over to sit in the driver's seat. She could not remember if she did this as soon as they arrived at the house or when the men returned to the truck. While Stella was sitting in the truck, she heard two gunshots, and then Bailey, appellant, and Kazee came back outside. She estimated that they were at the house for "minutes."
Appellant and Kazee returned to appellant's truck, and Stella drove away from the house. Neither of them said anything to her once they returned. Stella did not drive for very long, and eventually appellant took over driving and drove them to the river bottoms. At one point, appellant stopped the truck, got out, walked away by himself, and came back. Stella could not see what he did at that time. Appellant then drove to a friend's house, where he washed his hands outside. They then went to another house, where a man painted the hood of appellant's truck black to match the rest of his truck.
Stella testified that she had seen appellant with a revolver in his possession on previous occasions, but she stated that he "didn't just carry a gun all the time." She repeatedly testified that she did not see appellant with a gun on the day of Saldana's murder.
Rose Preece testified that, on September 25, appellant picked up Stella, Kazee, and her and started driving them to go play gaming machines. On the way there, appellant received a phone call from Bailey. Rose was sitting in the backseat of the truck, and she testified that appellant's phone was on speaker and the windows were rolled down, so she could not really hear what appellant and Bailey were saying. As a result of this phone call, appellant changed destinations, and the group did not go play gaming machines. While they were driving, Stella told Rose that appellant would drop her off at the river bottoms. Appellant did so, and he then drove away with Stella and Kazee still in the truck.
Kazee testified that, on September 25, appellant was supposed to pick him up and take him to class, but instead appellant drove Stella, Rose, and him towards Baytown. Kazee knew of Saldana and he knew that Saldana and appellant had had a "confrontation at a gas station" that led to Saldana's shooting appellant in the foot. While appellant was driving, he received a phone call. Kazee could only hear portions of what appellant said during the conversation, but he heard a reference to going to Saldana's house.
On the way into Baytown, appellant dropped Rose off at the river bottoms. Kazee stated that no one wanted Rose in the car because "she was like everybody's little sister." After they dropped Rose off, appellant's truck ran out of gas, and appellant called Bailey for assistance. Bailey and Brown picked appellant up and drove him to a gas station, and Kazee and Stella remained in appellant's truck. After Bailey brought appellant back and they refilled the truck's gas tank, appellant followed Bailey to a house in Baytown.
At the house, Bailey, appellant, and Kazee got out of their respective vehicles. Appellant had told Kazee that Saldana was in the house, but Kazee did not know what they were going to do when they went inside. He stated that his understanding was that Saldana "was just supposed to get beat up basically." Kazee did not have a gun with him, but appellant pulled a revolver out of the center console of his truck. Bailey had a semiautomatic handgun.
When the men entered the house, Saldana was sitting at a desk in the bedroom. He did not make any aggressive moves towards anyone in the house. Appellant called Saldana's name, and when Saldana turned around, appellant hit him in the back of the head with his weapon, which knocked Saldana to the ground. Appellant kicked Saldana and continued to hit him with his weapon. After appellant kicked Saldana onto his back, Bailey shot at Saldana and then appellant shot at Saldana. According to Kazee, Bailey's shot hit Saldana in the chest and appellant's hit him in the head. After the shooting, appellant threatened Hourshad, and then the three men left the house.
Dr. Stephen Wilson, who performed the autopsy on Saldana, testified unequivocally that Saldana only had one gunshot wound to his chest. Saldana also had abrasions on his face.
Stella drove Kazee and appellant away from Hourshad's house, but appellant soon took over driving, and he drove them down to the river bottoms. Appellant then left the truck and walked alone towards the river. Kazee could see that appellant had a gun when he left the truck, but he did not have a gun when he returned. Appellant then washed his hands while Kazee and Stella stayed in the truck. Kazee accompanied appellant and Stella to another house where a man painted the hood of appellant's truck black. Appellant then dropped Kazee off at his aunt's house. Kazee has never been charged with any offense relating to this incident.
The State also called Jose Zuniga as a witness. Zuniga met appellant while they were both incarcerated in the Harris County Jail. Appellant told Zuniga details about the underlying charge. Specifically, appellant told Zuniga that he and his co-conspirator left two women in their cars and went inside and, according to Zuniga, "that's when he said he shot the man." Appellant told Zuniga that he shot the complainant, not his co-conspirator, and that he used a revolver so he would not leave any shell casings behind. Appellant did not tell Zuniga anything about the complainant except that his name was Sergio.
Baytown Police Department Officer M. Farabee collected evidence from Hourshad's house after Saldana's murder. In the bedroom where Saldana had been shot, Officer Farabee collected a shell casing and a fragment from a projectile that had passed through a mattress and was embedded in the box spring. Officer Farabee returned to the house at a later date and recovered a second projectile embedded in the carpet at the foot of the bed. This projectile was found directly under where Saldana had been lying on the floor. Officer Farabee submitted this projectile for DNA testing.
Deputy B. Bruns with the Harris County Sheriff's Office examined the shell casing and projectiles that were recovered from Hourshad's house. Bruns identified the shell casing and the projectile recovered from the box spring as a spent 9mm cartridge casing and a 9mm class bullet, respectively. Bruns identified the projectile recovered from the floor as a bullet fired out of a revolver. Bruns testified that the two recovered bullets were fired from different weapons.
Kelly Anders, a DNA analyst with the Harris County Institute of Forensic Sciences, examined the projectile recovered from the floor of Hourshad's house. She testified that she obtained a DNA profile from this projectile and that Saldana could not be excluded as the source of the DNA.
In the charge, the trial court instructed the jury that Brown, Hourshad, and Kazee were all accomplices as a matter of law and that it could not convict based on their testimony unless they believed there was other evidence in the case tending to connect appellant to the offense. The trial court also overruled appellant's request to have Stella Preece designated as an accomplice as a matter of law, and instead instructed the jury to determine as a fact question whether she was an accomplice. This instruction told the jury that if it determined Stella was an accomplice, then it could not consider her testimony unless it believed that there was other evidence tending to connect appellant to the offense. The instruction also stated that accomplices could not corroborate each other. The trial court further instructed the jury that if it believed that appellant and Jose Zuniga were imprisoned in the same correctional facility at the same time and that appellant made a statement against his interest to Zuniga, it could not convict based on Zuniga's testimony unless Zuniga's testimony was corroborated by proof tending to connect appellant to the offense.
The jury found appellant guilty of murder and, after finding the allegations in two enhancement paragraphs true, assessed appellant's punishment at fifty years' confinement. This appeal followed.
Accomplice Witness Instruction
In his first issue, appellant contends that the trial court erred by failing to instruct the jury that Stella Preece must be considered an accomplice as a matter of law. He argues that the trial court erroneously allowed the jury to decide whether Stella was an accomplice as a matter of fact.
A. Standard of Review
We use a two-step process in reviewing jury charge error. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). First, we determine whether error exists in the charge. Id. If error does exist, we review the record to determine whether the error caused sufficient harm to require reversal of the conviction. Id. When, as here, the defendant properly objected to the error in the charge, reversal is required unless the error was harmless. Id.; see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); Starks v. State, 127 S.W.3d 127, 133 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd, untimely filed) (providing that, to preserve error in jury charge, defendant must object or request specific charge).
B. Law Relating to Accomplice Witness Instructions
Code of Criminal Procedure 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." TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). "An accomplice is a person who participates in the offense before, during, or after its commission with the requisite mental state." Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011); see Delacerda v. State, 425 S.W.3d 367, 394 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd).
A person may be liable as an accomplice under either a direct-party theory of liability or as a co-conspirator. See TEX. PENAL CODE ANN. § 7.02 (West 2011); Zamora v. State, 411 S.W.3d 504, 510-11 (Tex. Crim. App. 2013). Presence at the crime scene does not make a person an accomplice; instead, an accomplice must have "engaged in an affirmative act that promotes the commission of the offense that the accused committed." Smith, 332 S.W.3d at 439; Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). A person is not an accomplice if they knew about the offense and failed to disclose it or helped the accused conceal the offense. Smith, 332 S.W.3d at 439.
A witness may be an accomplice as a matter of law or as a matter of fact, and "[t]he evidence in each case will dictate whether an accomplice as a matter of law or fact instruction is required." Id. If the witness cannot be prosecuted for the same offense with which the defendant is charged, or prosecuted for a lesser-included offense, the witness is not an accomplice as a matter of law. Delacerda, 425 S.W.3d at 394; see also Druery, 225 S.W.3d at 498 (stating that instructing jury that witness is accomplice as matter of law is appropriate "when the witness is charged with the same offense as the defendant or a lesser-included offense or when the evidence clearly shows that the witness could have been so charged"). "When the evidence clearly shows (i.e., there is no doubt) that a witness is an accomplice as a matter of law, the trial judge must instruct the jury accordingly." Smith, 332 S.W.3d at 439; Delacerda, 425 S.W.3d at 395 ("A trial court has no duty to instruct the jury that a witness is an accomplice witness as a matter of law 'unless there exists no doubt that the witness is an accomplice.'") (quoting Druery, 225 S.W.3d at 498). "When there is doubt as to whether a witness is an accomplice (i.e., the evidence is conflicting), then the trial judge may instruct the jury to determine a witness's status as a fact issue." Smith, 332 S.W.3d at 439-40. We review a trial court's decision to deny a requested accomplice witness instruction for an abuse of discretion. Delacerda, 425 S.W.3d at 395.
C. Analysis
In the jury charge, the trial court instructed the jury that three witnesses—Brown, Hourshad, and Kazee—were accomplices as a matter of law and instructed the jury that it was to determine, as a question of fact, whether Stella Preece was an accomplice. Appellant contends that the trial court should have instructed the jury that Stella was an accomplice as a matter of law.
Appellant argues that Stella was susceptible for prosecution for murder or, at the least, for the lesser-included offense of assault. Appellant emphasizes that Stella knew "something bad was going to happen" and that she drove appellant and Kazee away from the scene of Saldana's murder after hearing two gunshots from inside of the house.
This Court has already addressed whether Stella's actions on the day of Saldana's murder rendered her an accomplice as a matter of law in the trial against Bailey. See Bailey v. State, No. 01-15-00215-CR, 2016 WL 921747, at *4 (Tex. App.—Houston [1st Dist.] Mar. 10, 2016, no pet.) (mem op., not designated for publication). In Bailey's trial, the trial court instructed the jury that Brown, Hourshad, and Kazee were accomplices as a matter of law, but it did not include any accomplice instruction with regard to Stella. Id. at *2. This Court concluded that because Stella had not been indicted with any offense relating to Saldana's murder, she was not an accomplice as a matter of law. Id. at *4.
We noted, however, that Stella knew there was "going to be trouble," so she requested that appellant drop Rose off at the river bottoms, that Stella could have seen appellant and Bailey enter Hourshad's house with weapons, that Stella saw appellant, Bailey, and Kazee "leave Hourshad's house looking 'shook up,'" and that Stella drove appellant and Kazee away from the house and back to the river bottom where appellant disposed of his weapon. Id. This Court concluded, "A jury could reasonably infer from this evidence that Stella was an accomplice, either by acting with intent to further the offense or as a co-conspirator." Id. We ultimately concluded that the trial court's failure to give any accomplice-witness instruction concerning Stella did not egregiously harm Bailey, as there was corroborating evidence independent of Stella's testimony that connected Bailey to Saldana's murder. Id.
Stella has still not been indicted with any offense related to Saldana's murder. Appellant has presented no compelling reason why we should reach a different result concerning Stella's accomplice status in this case. As appellant points out, the evidence reflects that Stella knew of a prior incident between appellant and Saldana; she knew that appellant was driving them to meet Bailey and that Saldana was somehow involved; she "didn't know what was going to happen" when they met up with Bailey and Saldana, so she asked appellant to drop Rose off before they reached their destination; she heard gunshots while appellant, Bailey, and Kazee were inside Hourshad's house; and she drove appellant and Kazee from the house after the shooting. As we noted in Bailey, a jury could reasonably infer from this evidence that Stella engaged in an affirmative act that promoted the commission of the murder with which appellant was charged and, therefore, she had the required mental state for an accomplice. See id.
The State also presented evidence from which a jury could reasonably infer that Stella did not possess the requisite culpable mental state to be an accomplice to Saldana's murder. See Smith, 332 S.W.3d at 439 (stating that accomplice "is a person who participates in the offense before, during, or after its commission with the requisite mental state"). Stella testified that she did not know what was going to happen when appellant met up with Bailey and Saldana. She testified that appellant did not tell Kazee and her where he was driving. Instead, the only thing she heard appellant tell Kazee was that they were going to meet Bailey and that Brown and Saldana were also present. Kazee testified that his understanding was that Saldana "was just supposed to get beat up basically." Stella did not testify that appellant informed her of his plans for what was to happen when they reached Saldana.
Although Kazee testified that when they reached Hourshad's house appellant removed a revolver from the truck's center console, Stella repeatedly testified that, while she had seen appellant in possession of a revolver in the past, she did not see him, or anyone else, with a weapon on the day of Saldana's murder. Stella also testified that, while at the house, she moved over into the driver's seat of the truck, although she could not remember if she did that as soon as they arrived at the house or when appellant, Bailey, and Kazee left the house after the shooting. There was no testimony concerning her reasons for moving into the driver's seat, and she did not testify that appellant told her to do so and she agreed.
We conclude that there is conflicting evidence concerning whether Stella acted with the requisite culpable mental state when she drove appellant and Kazee away from the house after Saldana's murder. Because the evidence is conflicting, we cannot say that the evidence "clearly shows," or that there is "no doubt," that Stella was an accomplice to this offense. See id.; Delacerda, 425 S.W.3d at 395. We therefore hold that the trial court correctly instructed the jury to determine, as a question of fact, whether Stella was an accomplice. See Smith, 332 S.W.3d at 439-40; Jester v. State, 62 S.W.3d 851, 854 (Tex. App.—Texarkana 2001, pet. ref'd) ("If evidence presented by the parties is conflicting, the issue of whether an inculpatory witness is an accomplice is properly left to the jury as a fact question under instructions defining the term 'accomplice.' This is true even if the evidence shows more likely than not that the witness is an accomplice as a matter of law."). Thus, the trial court did not err by refusing appellant's requested instruction identifying Stella as an accomplice as a matter of law.
We overrule appellant's first issue.
Sufficiency of the Evidence
In his second issue, appellant contends that the State failed to present sufficient non-accomplice corroborating evidence connecting him to the commission of the offense.
A. Standard of Review
As noted above, the accomplice-witness rule 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. ANN. art. 38.14; Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). The accomplice-witness rule "is a 'statutorily imposed review and is not derived from federal or state constitutional principles that define'" the sufficiency of evidence standard. Malone, 253 S.W.3d at 257 (quoting Druery, 225 S.W.3d at 498). Similarly to the accomplice-witness rule, Code of Criminal Procedure article 38.075(a) provides that "[a] defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant's interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed." TEX. CODE CRIM. PROC. ANN. art. 38.075(a) (West Supp. 2016); Phillips v. State, 463 S.W.3d 59, 66 (Tex. Crim. App. 2015) ("Jailhouse-witness testimony is inherently unreliable due to the inmate's incentive to better his circumstances.").
When evaluating the sufficiency of corroborating evidence under the accomplice-witness rule, we "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." Malone, 253 S.W.3d at 257 (quoting Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001)). The corroborating evidence need not, by itself, prove the defendant's guilt beyond a reasonable doubt. Id.; see Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007) (stating that corroborating evidence does not have to "directly link" defendant to crime). "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.'" Malone, 253 S.W.3d at 257 (quoting Hernandez v. State, 939 S.W.2d 173, 179 (Tex. Crim. App. 1997)). There is no set amount of non-accomplice corroborating evidence that is required; instead, each case must be judged on its own facts. Id. (quoting Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994)); Torres v. State, 408 S.W.3d 400, 404 (Tex. App.—Houston [1st Dist.] 2012, no pet.). In evaluating the corroborating evidence, we consider its reliability and the strength of its tendency to connect the defendant with the offense. Torres, 408 S.W.3d at 404. "[C]ircumstances that are apparently insignificant may constitute sufficient evidence of corroboration." Malone, 253 S.W.3d at 257.
The Court of Criminal Appeals has held that when there are two permissible views of non-accomplice corroborating evidence, one tending to connect the defendant to the offense and the other not tending to connect the defendant to the offense, we should defer to the view of the evidence chosen by the fact-finder. Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) ("When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination."). The issue is thus not how we would independently assess the non-accomplice corroborating evidence "but whether a rational fact-finder could conclude that the non-accomplice evidence 'tends to connect' [the defendant] to the offense." Simmons, 282 S.W.3d at 509; see also Smith, 332 S.W.3d at 442 ("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."). It is not appropriate for appellate courts to "independently construe the non-accomplice evidence." Smith, 332 S.W.3d at 442. We consider the combined force of all of the non-accomplice evidence that tends to connect the accused to the offense. Id.
B. Corroboration of Accomplice Witness Testimony
Here, appellant was charged with murder. A person commits murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1)-(2) (West 2011). Moreover, under the law of parties, a person is criminally responsible for an offense committed by another if, acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2); see Vasquez v. State, 56 S.W.3d 46, 48 (Tex. Crim. App. 2001) ("[T]here must be some non-accomplice evidence tending to connect the defendant to the crime, not to every element of the crime."). Thus, the State was required to present sufficient non-accomplice evidence for a rational jury to connect appellant to the murder of Saldana either directly or under the law of parties. See Malone, 253 S.W.3d at 257; Hernandez, 939 S.W.2d at 179.
The State presented sufficient non-accomplice evidence to connect appellant to Saldana's murder in the minds of a reasonable jury. Richard Deviller testified that Saldana became involved in a disagreement between appellant and Deviller in 2012. During the course of their disagreement, Saldana fired a shot that hit appellant on the foot. Deviller's testimony thus provides evidence of appellant's motive to harm Saldana. Although evidence of motive is insufficient on its own to corroborate accomplice-witness testimony, it may be considered in connection with other evidence tending to connect the accused to the crime. Smith, 332 S.W.3d at 442.
Rose Preece, who was not an accomplice, testified that she was in appellant's truck with appellant, Stella, and Kazee on the way to go gambling when appellant received a phone call from Bailey. Rose was sitting in the backseat of the truck and the windows were down, so she could not hear what appellant and Bailey were saying, but after the call ended, they were no longer going gambling. Rose stated, "They were headed somewhere else and I was getting dropped off." Appellant dropped Rose off at the river bottoms. She testified that appellant, Stella, and Kazee remained in the truck. While the accused's mere presence in the company of an accomplice before the commission of the offense is insufficient by itself to corroborate accomplice testimony, evidence of presence in addition to "other suspicious circumstances" may tend to connect the accused to the offense. See Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996).
In addition, the trial court admitted records of Hourshad's text messages, including the messages that he exchanged with Brown on the day of Saldana's murder. In these messages, Brown asked Hourshad, "Does [Saldana] know we are coming[?]" She also stated, "we are on our way." Brown asked Hourshad if Saldana was "a real big guy" and if they were the only two people in the house. About half an hour later, Brown asked Hourshad what he and Saldana were doing and if Saldana had "do[ne] that hit [of heroin] yet." She told Hourshad to leave the door unlocked. Brown then sent a message stating, "Thank you[,] just don't stand by the door[,] ok[,] is he still on the couch[?]" When Hourshad responded in the affirmative, she texted, "There are about to be three people coming in[,] don't be by the door or by him[,] don't worry." Brown's last message to Hourshad on the date of Saldana's murder stated, "Erase my messages." Brown's text messages thus connect three people to the events that occurred at Hourshad's house.
At about the time that Brown sent this text message to Hourshad, Bailey appeared on surveillance cameras at a nearby gas station. After appellant's truck ran out of gas while he was on the way to meet Bailey, Brown and Bailey picked appellant up and drove him to get gas while Stella and Kazee remained with appellant's truck.
Moreover, Stella testified that she had seen appellant with a revolver in the past, and Kazee testified that appellant carried a revolver into Hourshad's house. Deputy Bruns testified that officers recovered from the scene a spent 9mm cartridge casing, a 9mm class bullet, and a bullet fired out of a revolver. Deputy Bruns also testified that the two bullets recovered at the scene were fired from different weapons. Officer Farabee recovered a projectile embedded in the box spring near Saldana's body, and at a later date, he recovered another projectile—which Deputy Bruns later identified as the revolver bullet—from the carpet on the floor underneath where Saldana's body had been discovered. The revolver bullet was submitted for DNA analysis, and Kelly Anders testified that Saldana could not be excluded as a contributor to the DNA found on this bullet. Evidence connecting a defendant to a weapon similar to that used in the offense is a circumstance that may be considered when determining the sufficiency of non-accomplice corroborating evidence. Hernandez, 939 S.W.2d at 178.
Additionally, Kazee testified that, when they encountered Saldana at Hourshad's house, appellant hit Saldana in the back of the head with his weapon, kicked Saldana, and continued to hit Saldana with his weapon. Dr. Wilson, who performed the autopsy on Saldana, testified that, in addition to one gunshot wound, Saldana also had abrasions on his face.
When considering all of the non-accomplice evidence together, as we must when reviewing the sufficiency of corroborating evidence, we conclude that a rational jury could have reasonably concluded that the non-accomplice evidence connected appellant to Saldana's murder. See Smith, 332 S.W.3d at 442; Simmons, 282 S.W.3d at 508. We therefore hold that the State presented sufficient non-accomplice corroborating evidence that tended to connect appellant to the charged offense. See TEX. CODE CRIM. PROC. ANN. art. 38.14; Malone, 253 S.W.3d at 257.
We overrule appellant's second issue.
Although the State also presented evidence from Jose Zuniga, who testified that appellant made inculpatory statements to him concerning Saldana's murder while they were both incarcerated pending trial, we note that the Corpus Christi Court of Appeals has held that accomplice testimony and jailhouse informant testimony cannot serve as the "other evidence" necessary for corroboration of both of these types of testimony. See Patterson v. State, 204 S.W.3d 852, 858-59 (Tex. App.—Corpus Christi 2006, pet. ref'd) (stating that allowing accomplice and informant to corroborate each other, such that "a defendant could be convicted on nothing more than the testimony of an accomplice and an informant," is "absurd in light of the legislature's clear action to disfavor such evidence and to hold it insufficient for conviction as a matter of law"); see also TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005) ("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 . . . .") (emphasis added); id. art. 38.075(a) (West Supp. 2016) ("A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant's interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed.") (emphasis added). We therefore do not include Zuniga's testimony in our analysis of whether the State presented sufficient non-accomplice evidence tending to connect appellant to Saldana's murder. Similarly, because the jury could have concluded, based on this record, that Stella Preece was an accomplice, we do not include her testimony in determining whether the State presented sufficient non-accomplice evidence.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice Panel consists of Justices Keyes, Bland, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).