Opinion
13-22-00297-CR
06-06-2024
GABRIEL KEITH ESCALANTE, Appellant, v. THE STATE OF TEXAS, Appellee.
Do not publish. Tex.R.App.P. 47.2(b).
ON APPEAL FROM THE 92ND DISTRICT COURT OF HIDALGO COUNTY, TEXAS
Before Chief Justice Contreras and Justices Longoria and Peña
MEMORANDUM OPINION
DORI CONTRERAS, CHIEF JUSTICE
Appellant Gabriel Keith Escalante was convicted of capital murder, a capital felony; murder, a first-degree felony; and tampering with physical evidence, a third-degree felony. See Tex. Penal Code Ann. §§ 19.02, 19.03, 37.09. Because the State did not seek the death penalty, Escalante was sentenced to life imprisonment without parole for the capital murder offense. On appeal, he challenges his convictions by five issues: (1) the evidence was insufficient to corroborate accomplice witness testimony; (2) the evidence was insufficient to support the verdicts; (3) the jury charge contained error; (4) his convictions for both capital murder and murder violated the United States Constitution; and (5) his convictions for both capital murder and murder violated the Texas Constitution. We affirm in part and reverse and render in part.
I. Background
The case concerns the deaths of Olivia Salinas and her son Alejandro (Alex) Salinas in April of 2018. Escalante was accused by indictment of intentionally or knowingly causing both deaths during the same criminal transaction or pursuant to the same scheme or course of conduct (Count 1), see id. § 19.03(a)(7); intentionally or knowingly committing or attempting to commit an act clearly dangerous to human life, while in the course of committing a felony (namely, causing injury to an elderly individual), which resulted in Olivia's death (Count 2), see id. § 19.02(c); and intentionally or knowingly destroying biological material with the intent to impair its availability as evidence in a subsequent investigation or proceeding (Count 3). See id. § 37.09(d)(1).
At trial, Elda Lara testified she is Olivia's daughter and Alex's sister. She said Olivia and Alex lived in a trailer in Edinburg. In early 2018, Olivia suffered a heart attack and became paralyzed on her entire right side due to complications following open-heart surgery. Elda stated she would go to her mother's home every day after work to care for her, and Alex would also assist Olivia by, among other things, driving her to doctor's appointments. Elda agreed that Olivia's relationship with Alex was "rocky at best," and she noted that Alex often asked her and their brother Rolando (Ronnie) to help with caring for Olivia. However, she said Alex was not violent with Olivia.
Elda stated that Olivia and Alex were previously involved in a car accident, and she identified records indicating that Olivia and Alex were entitled to receive $135,000 pursuant to a settlement agreement. A mobile home salesman testified that, in early April of 2018, Olivia and Alex signed an agreement to purchase a mobile home from him, and they paid a $10,000 deposit, but on April 20, he refunded their deposit pursuant to their request because they could not obtain financing for the balance.
Elda testified that, shortly after she arrived at Olivia's trailer at around 3:00 p.m. on Saturday, April 21, 2018, she saw Escalante walk in the trailer. Olivia told Elda that Escalante was Alex's friend and was there to help Alex unload and install a clothes washer. According to Elda, Olivia did not want Escalante to be at the trailer because "she didn't trust him." An Edinburg Police Department officer testified that, about a month before the murders, Alex had reported to police that Escalante assaulted him after he told Escalante that Olivia did not want Escalante hanging around in the trailer.
Elda said her mother typically called her every day, but she did not on April 22 or 23, and Elda's phone calls to her went straight to voicemail. Accordingly, Elda contacted police, who advised her that she "had to wait 48 hours" before making a missing person report. On Tuesday, April 24, Elda contacted local hospitals searching for her mother, to no avail. On Wednesday, April 25, Ronnie called Elda to tell her that Olivia and Alex's trailer had been "ransacked" and that its front door was unlocked. Elda went to the trailer the next day and confirmed this; she also noticed that Olivia's truck and wheelchair were missing from the property.
On Saturday, April 28, Elda and Ronnie went to the trailer and found that it had been damaged by a fire, so they called police. Edinburg Police Department Officer Joseph Mata arrived to investigate. Elda noted that the gates around the trailer were locked, which was unusual. At Elda's suggestion, Ronnie and Mata jumped over the gate to access the rear of the property. Ronnie testified that he saw a "brand new shovel" in that area, and it looked like "somebody tried digging a hole about 6 feet, 7 feet long" and "about a foot . . . deep" nearby. Ronnie and Mata detected a foul odor and saw a swarm of flies around the base of a mesquite tree; Mata inspected further and saw what appeared to be a decaying human arm underneath some debris.
A fire department captain testified that he responded to a fire at the property on Friday, April 27. He stated that the fire damage was limited to the area around the front door, and the back of the trailer was not affected. He opined that the fire originated in the kitchen area of the trailer, which was near the front door.
Mata requested assistance, and lead investigator Rudy Gonzalez responded to the scene. After obtaining a search warrant, Gonzalez and other officers searched the rear of the property and discovered two dead and decomposing bodies wrapped in tarps and covered with wooden pallets under the mesquite tree. The bodies were later identified as those of Olivia and Alex. The medical examiner performed autopsies and opined that Alex's cause of death was "homicidal violence with blunt force head trauma," while Olivia's cause of death was "homicidal violence with evidence of asphyxia" based on a hyoid bone fracture. A more precise cause of death could not be determined because of the extent of decomposition.
In the rear of Olivia and Alex's property, there was also an abandoned vehicle which had a strong stench of decomposition and an abundance of flies. There was a white powdery substance throughout the vehicle which police believed to be detergent. Gonzalez stated that, though the vehicle "looked like it hadn't been moved in a while," the powdery substance looked like it had been there "not too long." Police recovered other evidence from the scene, including a piece of cloth from an old mattress which appeared to have blood stains.
From interviews of Elda and Ronnie, Gonzalez learned that Escalante "would frequent the residence," and so Escalante became the focus of the investigation. Forensic analysis later revealed the presence of Escalante's DNA on the piece of cloth taken from the mattress recovered from the property.
Gonzalez and other officers searched the apartment where Escalante lived with his girlfriend, Navejar. Gonzalez stated that the apartment had a strong odor of bleach, there were many cleaning products, and it appeared that someone had tried to clean up some blood. A sample was taken from an apparent blood stain on a television in the apartment; forensic analysis later revealed the presence of Alex's DNA in the sample. Additionally, there was a "small wagon" near the back door of the apartment. Eventually, police located Escalante in possession of Olivia's truck. Inside the truck, officers recovered various items including drug paraphernalia, cleaning products, a gun which was registered to Olivia, jewelry which belonged to Olivia and Alex, a purse which belonged to Olivia, a key to the gate at Olivia and Alex's trailer, and Olivia's wheelchair.
Police located Navejar and interviewed her. From information she provided, police discovered that several items owned by OIivia and Alex, including power washing equipment which Alex used in his business, had been sold at a pawn shop on South Closner Boulevard in Edinburg. Surveillance footage from the pawn shop was entered into evidence. It shows a damaged truck, with various items including a power washer in the bed, arriving at the shop on Friday, April 27. A man wearing cargo shorts and with bruises on his face can be seen walking back and forth from the truck to the shop, and another man in a white shirt can be seen pawning the items. According to Gonzalez, Escalante's friend Guadalupe Gonzales pawned the items, he was accompanied by Escalante and Navejar, and the three had traveled to the pawn shop in Olivia's truck.
Investigators obtained surveillance footage from a neighbor of Escalante. The footage showed Escalante and Navejar loading a large wrapped item from a wagon onto a truck, then placing a mattress over it. Escalante and Navejar were arrested for the murders.
Navejar testified that she, like Escalante, had been charged with capital murder, murder, and tampering with physical evidence arising from the deaths of Olivia and Alex. She said that she had previously been in prison multiple times, and she reached an agreement with the State that her testimony in this case would not be used against her. Navejar said she introduced Escalante to Alex in 2017, and that the three of them would often use crack cocaine. She said that Alex was "like a brother" to her, but Escalante "would always get mad at [Alex]" and would hit him. Navejar stated that Alex once confided in her that he had told Escalante about the settlement money that he and Olivia were going to receive.
According to Navejar, she, Alex, and Escalante were using drugs at Alex's trailer on April 23, 2018, when they ran out of drugs and decided to go to Escalante's residence to obtain more. Navejar testified that she fell asleep at Escalante's residence and, when she woke up, she saw Escalante beating and kicking Alex and "banging his head so many times on the floor" that Alex had "blood coming out of his head." She said she told Escalante to stop, but he did not, and he pointed a gun at her. Later, Escalante ordered Navejar to help him load something into the back of the truck. The item was wrapped in a blanket and situated in a small cart, which Navejar identified as the same cart found by police in Escalante's apartment. Navejar said she later realized that the item in the cart was Alex's dead body. She said Escalante placed a mattress over the body in the bed of the truck. She said she complied with Escalante's instructions because she was scared of what he would do to her if she refused. She noted that Escalante was "really high" during these events.
Navejar stated that the gun belonged to Alex.
Navejar testified that Escalante parked the truck in front of Olivia and Alex's trailer and instructed Navejar to look "for some money" in the trailer. She agreed that she "ransacked" the trailer to look for money at Escalante's request. When Navejar sat on the bed in the trailer, she noticed that Olivia was next to her. Navejar said Escalante "kept yelling at me to look for some money" and then started beating her and Olivia. According to Navejar, Escalante put Olivia in a "broke[n] down vehicle" and "suffocated her there." He took both Alex's and Olivia's bodies and placed them in the back of the property near some grass. Escalante then ordered Navejar to clean up the "broke[n] down vehicle" with bleach, and she did so. Later, Escalante bleached Alex's and Olivia's clothes, put the clothes in a plastic bag, and dumped the bag behind a gate at his friend's house. Then, they went back to the trailer, where Escalante "put gasoline all over inside the trailer, came out, lit it up, and it just blew up."
Escalante was convicted as charged and was sentenced to concurrent prison terms of life without parole for Count 1, life for Count 2, and ten years for Count 3. This appeal followed.
II. Discussion
A. Double Jeopardy
At the outset, we consider Escalante's fourth and fifth issues, by which he contends that his convictions on the first two counts violated his double jeopardy rights under the United States and Texas Constitutions, respectively. See U.S. Const. amend. V, XIV; Tex. Const. art. I, § 14. Both constitutions prohibit the assessment of multiple punishments for the same offense. See Illinois v. Vitale, 447 U.S. 410, 415 (1980); Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014). Escalante argues that Count 2 is a lesser-included offense of Count 1, and therefore, conviction on both counts constitutes multiple punishments for the same offense. See Salinas v. State, 163 S.W.3d 734, 741- 42 (Tex. Crim. App. 2005) ("Felony murder is a lesser-included offense of capital murder."); Rousseau v. State, 855 S.W.2d 666, 673, 675 (Tex. Crim. App. 1993) (same); Creel v. State, 754 S.W.2d 205, 211 (Tex. Crim. App. 1988) (same); see also Littrell v. State, 271 S.W.3d 273, 275-76 (Tex. Crim. App. 2008) (noting that, for purposes of a multiple-punishments double jeopardy claim, two offenses are considered "the same" if "one offense stands in relation to the other as a lesser-included offense, or if the two offenses are defined under distinct statutory provisions but the Legislature has made it clear that only one punishment is intended").
The State does not offer any argument in opposition to these issues; instead, it concedes that "only one of the convictions on Count One and Count Two can stand." In consideration of this fact, we sustain Escalante's fourth and fifth issues.
Escalante did not raise his double jeopardy complaint in the trial court. However, a double jeopardy claim may be raised for the first time on appeal if: (1) "the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record" and (2) "enforcement of the usual rules of procedural default serves no legitimate state interest." Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006). The State does not dispute that these elements have been met here.
Generally, when a defendant is convicted in a single criminal trial of two offenses that are considered the same for double jeopardy purposes, the remedy is to retain the conviction for the "most serious offense" and vacate the other conviction. Bien v. State, 550 S.W.3d 180, 188 (Tex. Crim. App. 2018). The "most serious offense" is the one for which the "greatest sentence was assessed." Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006). The sentence for Count 1 was life imprisonment without parole, whereas the sentence for Count 2 was life imprisonment. Accordingly, we will vacate the judgment of conviction for Count 2. See id.
In light of this conclusion, we do not address the remaining issues insofar as they concern Count 2. See Tex. R. App. P. 47.1.
B. Accomplice Witness Corroboration
By his first issue, Escalante contends the evidence was insufficient to corroborate Navejar's testimony. Article 38.14 of the Texas Code of Criminal Procedure 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. This rule is based on "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." Zamora v. State, 411 S.W.3d 504, 509-10 (Tex. Crim. App. 2013) (citing Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998)); see Walker v. State, 615 S.W.2d 728, 731 (Tex. Crim. App. [Panel Op.] 1981) ("[T]he testimony of an accomplice witness is to be carefully scrutinized not only because of any interest he or she might have but because his [or her] testimony is evidence from a corrupt source."). The jury was instructed as to this rule.
When an appellant argues that the accomplice testimony was not sufficiently corroborated, "the reviewing court eliminates all of the accomplice testimony from consideration and then examines 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." Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). "[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 v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011).
The only witness who was an accomplice of Escalante was Navejar. Excluding her testimony, the evidence adduced at trial supported the following facts: (1) about a month prior to the killings, Alex reported to police that Escalante assaulted him after he told Escalante that Olivia did not want Escalante to be in their trailer; (2) a mattress found at Olivia and Alex's property, near where their bodies had been placed, had traces of Escalante's blood on it; (3) Escalante was apprehended by police while in possession of Olivia's truck, and many items belonging to Olivia and Alex were inside the truck, including Olivia's gun and wheelchair and keys to the gate at Olivia and Alex's trailer; (4) Escalante and two others went to a pawn shop in Olivia's truck, and Escalante's associate pawned some of the items which belonged to Alex and Olivia; (5) Escalante's apartment smelled of bleach and it appeared that someone had tried to clean up blood there; (6) traces of Alex's blood were found on a television recovered from Escalante's apartment; and (7) surveillance video showed Escalante loading a large item wrapped in a covering from a wagon onto a truck, and the wagon matched the appearance of one which was later found in Escalante's apartment.
Because Navejar, like Escalante, was charged with the murders of Olivia and Alex, she is his accomplice as a matter of law. See Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011) ("A witness who is indicted for the same offense or a lesser-included offense as the accused is an accomplice as a matter of law.").
As to Count 1, Escalante argues that certain specific parts of Navejar's testimony were not corroborated, such as her statement that Escalante was beating and kicking Alex to the point where Alex had "blood coming out of his head." That may be true, but under article 38.14, corroborating evidence "does not have to directly link appellant to the crime, nor does it alone have to establish his guilt beyond a reasonable doubt." McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997); Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). Rather, there must simply be "some" other evidence "which tends to connect appellant to the commission of the offense alleged in the indictment." Castillo, 221 S.W.3d at 691. Even "apparently insignificant incriminating circumstances" may sometimes be sufficient to corroborate under article 38.14. Dowthitt, 931 S.W.2d at 249. The above-referenced evidence-most notably, surveillance video and witness testimony establishing that Escalante and two associates, traveling in Olivia's truck, sold items belonging to Olivia and Alex a few days after they were last seen alive-is sufficient to connect Escalante to the murders of Olivia and Alex. See Smith, 332 S.W.3d at 445 (noting that a defendant's behavior or actions prior to or following an offense may tend to connect the defendant with the commission of the offense).
As to Count 3, the State points to non-accomplice testimony that cleaning products were found in Escalante's apartment, that the apartment smelled strongly of bleach and it appeared someone had tried to clean blood, and that there were cleaning products in Olivia's truck when Escalante was apprehended. We again note that Alex's DNA was found in a blood stain on a television recovered from Escalante's apartment. Again, Escalante argues that certain details of Navejar's testimony were not corroborated-in particular, whereas Navejar stated Escalante ordered her to clean the abandoned vehicle on Olivia and Alex's property with bleach, officers testified there was a white powdery substance in the vehicle which they believed to be detergent. However, we conclude the other evidence, including the testimony previously discussed with respect to Count 1, sufficiently connects Escalante to tampering with evidence as alleged in the indictment.
We observe that Navejar testified as to at least three instances in which Escalante arguably destroyed biological material with intent to impair its availability as evidence-he ordered her to clean the abandoned vehicle with bleach, he bleached Alex's and Olivia's clothes, and he set fire to the trailer. The record does not clearly reflect which specific act the State relied upon to prove Count 3. See Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011) (noting that, to convict a defendant under Texas law, a jury must "agree upon a single and discrete incident that would constitute the commission of the offense alleged" and "non-unanimity may occur when the State charges one offense and presents evidence that the defendant committed the charged offense on multiple but separate occasions"). Nevertheless, Escalante did not request that the State elect which act it was relying on to establish Count 3, and he does not complain about the State's failure to do so on appeal. See O'Neal v. State, 746 S.W.2d 769, 772 (Tex. Crim. App. 1988) ("[O]nce the State rests its case in chief, in the face of a timely request by the defendant, the trial court must order the State to make its election." (emphasis added)); Cosio, 353 S.W.3d at 775 ("A defendant's decision to elect is purely strategic and may be waived or forfeited."). In their briefs, neither party cites authority concerning the corroboration of accomplice witness testimony in this context. We hold that the non-accomplice evidence is sufficient, for purposes of article 38.14, to connect Escalante to each of the acts of tampering testified to by Navejar.
For the foregoing reasons, Escalante's first issue is overruled.
C. Evidentiary Sufficiency
By his second issue, Escalante argues the evidence was insufficient to support his convictions. "Evidence is sufficient to support a criminal conviction if a rational jury could find each essential element of the offense beyond a reasonable doubt." Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In a sufficiency review, we view the evidence in the light most favorable to the verdict and consider all of the admitted evidence. Id. We consider both direct and circumstantial evidence as well as all reasonable inferences that may be drawn from the evidence and are not mere speculation. See id.; Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). "The jury is the sole judge of credibility and weight to be attached to the testimony of the witnesses"; therefore, "[w]hen the jury could reasonably draw conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict." Stahmann, 602 S.W.3d at 577; see Tex. Code Crim. Proc. Ann. art. 38.04.
Sufficiency is measured by the elements of the offense as defined by a hypothetically correct jury charge. Curlee v. State, 620 S.W.3d 767, 778 (Tex. Crim. App. 2021) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). A hypothetically correct charge "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. (citing Malik, 953 S.W.2d at 240). "The law 'authorized by the indictment' consists of the statutory elements of the offense as modified by the indictment allegations." Id.
A hypothetically correct charge would instruct the jury to find Escalante guilty of capital murder as alleged in Count 1 if: (1) he intentionally or knowingly caused Olivia's death; (2) he intentionally or knowingly caused Alex's death; and (3) both murders were committed during the same criminal transaction or pursuant to the same scheme or course of conduct. See Tex. Penal Code Ann. § 19.03(a)(7). Such a charge, consistent with the indictment, would instruct the jury to find Escalante guilty of tampering with evidence as alleged in Count 3 if: (1) knowing that murder had been committed; (2) he intentionally or knowingly destroyed biological material; (3) with intent to impair its availability as evidence in any subsequent investigation of or official proceeding related to the murder. See id. § 37.09(d)(1).
A person acts intentionally with respect to a result of his conduct when it is his conscious objective or desire to cause the result. Id. § 6.03(a). A person acts knowingly with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). Intent may generally be inferred from circumstantial evidence such as acts, words, and the conduct of the appellant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).
In addition to the non-accomplice evidence described in our discussion of Escalante's first issue, the evidence also included the extensive and detailed testimony of Navejar, who stated: (1) Escalante beat and kicked Alex until blood was coming out of his head; (2) Escalante knew about the settlement funds that Olivia and Alex were going to receive, and he ordered Navejar to look for money in the trailer; (3) Escalante told Navejar that he put Olivia in an abandoned vehicle and suffocated her there; (4) Navejar cleaned the abandoned vehicle with bleach at Escalante's direction; (5) Escalante bleached Alex's and Olivia's clothes and dumped them at his friend's house; and (6) Escalante set fire to Alex's and Olivia's trailer.
In this issue, Escalante primarily complains about the dearth of forensic evidence adduced at trial-among other things, he notes that Alex's blood was not found on Escalante's shoes, police did not use luminol to determine whether there was blood present in Escalante's apartment, and no fingerprints were recovered from the shovel or abandoned vehicle in the back of Olivia's and Alex's property. Escalante further contends that Navejar's testimony was "so incredulous [sic]" that consideration of it in our analysis would "affect[]" his constitutional right to due process. We disagree. Navejar's testimony was direct, free from self-contradiction, and largely consistent with the physical evidence, and the jury could have reasonably believed any or all of it. See Tex. Code Crim. Proc. Ann. art. 38.04; Stahmann, 602 S.W.3d at 577. From her testimony and the rest of the evidence adduced at trial and discussed above, a rational juror could have found the essential elements of Counts 1 and 3 beyond a reasonable doubt. See Stahmann, 602 S.W.3d at 577 . Escalante's second issue is overruled.
D. Jury Charge
By his third issue, Escalante argues the trial court "undermined the presumption of innocence and unfairly commented on the weight of the evidence" by "distinctly implying [Escalante] was a guilty criminal defendant in the case because he had an accomplice." See Tex. Code Crim. Proc. Ann. art. 36.14 (providing that, after a felony jury trial, the trial court must submit a "written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury"). Each of the three jury charges submitted in this case-one for each count-stated as follows:
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.
Upon the law of accomplice witness testimony, you are instructed that Irene Navejar was an accomplice, if any offense was committed, as alleged in the indictment. With this in mind, you are further instructed that you cannot convict the Defendant upon Irene Navejar's testimony, unless you first believe that her testimony is true and shows the guilt of the Defendant as charged in the indictment, and then you cannot convict the Defendant unless Irene Navejar's testimony is corroborated by other evidence tending to connect the Defendant with the offense charged. The corroboration is not sufficient if it merely shows the commission of an offense, but it must tend to connect the Defendant with its commission, and then from all the evidence, you must believe beyond a reasonable doubt that the Defendant is guilty of the offense charged.(Emphasis added.) Escalante contends that "[t]he judge, by strong if not necessary implication, told the jurors who did it when he identified Irene as the sole person who was the accomplice." He claims that, by implying that "only guilty persons have accomplices," this instruction "took the fact-finding function away from the jury and subverted the presumption of innocence" in violation of his constitutional right to due process.
As the State notes, Escalante did not object to the instruction or request an alternative instruction at trial. Accordingly, if we found error in the charge, we would reverse his convictions only if the error caused him to suffer "egregious harm" by depriving him of a fair and impartial trial. See Chambers v. State, 580 S.W.3d 149, 154 (Tex. Crim. App. 2019). In light of our conclusion that the jury charge did not contain error, we do not address whether Escalante was egregiously harmed by the instruction. See Tex. R. App. P. 47.1.
We disagree. "If a prosecution witness is an accomplice as a matter of law, the trial court is under a duty to instruct the jury accordingly." Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002) (citing Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998)); DeBlanc v. State, 799 S.W.2d 701, 708 (Tex. Crim. App. 1990). The instruction provided to the jury in this case named Navejar as an "accomplice," but it explicitly stated that she was an "accomplice" only if an "offense was committed." Therefore, though the instruction may have implied that "only guilty persons have accomplices," it did not imply that Escalante was a guilty person. Escalante does not cite any authority, and we find none, establishing that an instruction such as this constitutes an improper comment on the weight of the evidence or undermines any constitutional right. See Tex. R. App. P. 38.1(i). We overrule his third issue.
III. Conclusion
We reverse the judgment of conviction on Count 2 and render judgment of acquittal on that count. The judgments of conviction on Counts 1 and 3 are affirmed.