No. 14-07-00253-CR
Opinion filed March 11, 2008. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 174th District Court Harris County, Texas, Trial Court Cause No. 1036503.
Panel consists of Chief Justice HEDGES, Justice ANDERSON, and FORMER Justice PRICE.
Former Justice Frank C. Price sitting by assignment.
ADELE HEDGES, Chief Justice.
Appellant, Christian Guadalupe Hernandez, appeals from his conviction for the capital murder of Christian Cuevas. A jury found appellant guilty and assessed punishment at life in prison. In two issues, appellant contends (1) the evidence was insufficient to corroborate the testimony of an accomplice witness, and (2) the trial court erred in failing to instruct the jury on the lesser included offense of aggravated robbery. We affirm.
Background
Jose Barajas testified that he has known appellant for several years. He said that he (Barajas) has committed aggravated robberies, appellant was present at one or more of these, and appellant knew Barajas routinely carried a firearm. On the evening of August 5, 2005, Barajas and appellant were at Barajas's house preparing to go out to a club. Barajas took a pistol with him, which appellant knew about. Appellant asked Barajas if he had another gun that he could borrow. Barajas said that he did not but offered appellant a switchblade knife, which appellant took. Appellant then suggested that they go "make some money," which Barajas took to mean go rob someone or burglarize an apartment. They got a ride to an apartment complex where they saw a group of three to five men drinking together in the parking lot. Barajas and appellant decided to rob the men. They walked toward the group; Barajas pointed his pistol at them and told them to get on the ground. Barajas said the men appeared to be scared and shocked and that they all got on the ground except for one man, later identified as Christian Cuevas, who resisted and tried to fight Barajas. Barajas told Cuevas to calm down or he (Barajas) would shoot him. Barajas tried to restrain Cuevas and put him on the ground, but Cuevas pulled loose and ran. Barajas told Cuevas to stop running or he (Barajas) would shoot him. Cuevas kept running, and Barajas shot him. Barajas went to where Cuevas fell to the ground and talked to him. When Barajas returned to appellant and the others in the parking lot, appellant was holding the switchblade in his hand. He pointed it at the men and told them to get on the ground and don't move. Barajas and appellant then searched the men and took money, watches, and rings, which they split between themselves. They also recovered keys from one of the men and drove away in his automobile. Barajas and appellant were subsequently found in the stolen vehicle and arrested. At the time, according to Barajas, appellant had possession of the weapon used to kill Cuevas. Later, Barajas entered into a plea agreement with prosecutors under which he would plead guilty to capital murder and receive a life sentence in exchange for testifying against appellant. Sergeant Gordon MacIntosh of the Houston Police Department testified that when appellant was arrested (approximately 10 hours after the robbery and murder), he was carrying in his pockets a pistol, a folding knife, and pawn slips. The pistol recovered from appellant was later determined by forensic testing to have fired the bullet that caused the death of Christian Cuevas. Fernando Escobedo Ortiz testified that on August 5, 2005, he was talking to a group of people in an apartment complex parking lot when two men approached. The men were dressed all in black; one was carrying a gun and the other a knife. The men made the group get on the ground. When a young man in the group tried to run away, the man with the gun shot him. Meanwhile, the man with the knife continued to threaten the others and even poked Ortiz in his abdomen with the knife. The two men then took Ortiz's money and his car keys and drove away in his car. Ortiz identified the knife taken from appellant at the time of his arrest as similar to the knife used the night of the robbery, and he identified the gun taken from appellant as similar to the firearm he saw that night. Ortiz additionally testified that he did not know if he would recognize the man who held the knife that night if he saw him again, and he failed to identify appellant as the perpetrator in court. Ismael Flores, Jr., formerly an officer with the Houston Police Department (retired at the time of trial), testified that in an interview, Ortiz described the man who poked him with the knife as being about 5'5" tall, 17-18 years old, 130 to 140 pounds, with a shaved head and wearing dark-colored clothing. Flores then described appellant as 5'5", approximately 140 pounds, and 19 years old. Sergeant MacIntosh testified that at the time appellant was arrested, his head was shaved, and he was dressed all in black. Accomplice Corroboration
In his first issue, appellant contends that the evidence was insufficient to corroborate Barajas's accomplice witness testimony. "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. Pro. art. 38.14. As detailed above, the main evidence against appellant was the testimony of Barajas, who admitted killing Cuevas during a robbery he conducted with appellant. Therefore, because Barajas was an alleged accomplice, there must be some other evidence connecting appellant to the crime in order for appellant's conviction to stand. The test for weighing the sufficiency of corroborative testimony is to eliminate from consideration the accomplice witness's testimony and examine the other evidence to see whether there is any evidence that tends to connect the accused with the commission of the crime. Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App. 1997). The corroborative evidence need not be sufficient in itself to establish guilt, nor must it directly link the accused to the commission of the offense; the accomplice witness rule is satisfied if there is some non-accomplice evidence that tends to connect the accused to the commission of the offense alleged in the indictment. Id. We view the evidence in the light most favorable to the jury's verdict. Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App. 1994). The jury convicted appellant of capital murder. Among other possibilities, a person commits capital murder if he or she intentionally or knowingly causes the death of an individual in the course of committing or attempting to commit a robbery. Tex. Penal Code § 19.03(a)(2). The jury was further instructed that it could convict appellant pursuant to the law of parties. Under the law of parties, "[a] person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Id. § 7.01(a). A person is "criminally responsible" for an offense committed by the conduct of another if, acting with 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). A person is also "criminally responsible" for an offense committed by the conduct of another when "in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators . . . if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy." Id. § 7.02(b). Appellant attacks the sufficiency of the corroborating evidence both to establish his identity as one of the perpetrators in the robbery and to establish that he should have anticipated that the murder would result from carrying out the robbery. Regarding appellant's identity as having participated in the robbery, the corroborating evidence includes Ortiz's testimony that someone fitting appellant's description participated in the robbery by, among other things, threatening the victims with a knife and taking Ortiz's money and automobile. Cf. Cooper v. State, 631 S.W.2d 508, 510 (Tex.Crim.App. 1982) (holding that a less than positive identification may be sufficient to corroborate accomplice witness testimony), overruled on other grounds, Bell v. State, 994 S.W.2d 173, 175 (Tex.Crim.App. 1999); Griffin v. State, 486 S.W.2d 948, 950 (Tex.Crim.App. 1972) (same); In re C.M.G., 905 S.W.2d 56, 59 (Tex.App.-Austin 1995, no pet.) (same). Barajas's testimony was additionally corroborated by the fact that appellant was arrested with Barajas approximately 10 hours after the murder. Cf. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App. 1996) (stating that while an accused's mere presence in the company of the accomplice witness before, during, and after the commission of the offense is insufficient to corroborate the accomplice witness's testimony, evidence of such presence combined with other suspicious circumstances may be sufficient). Additionally, the police discovered Barajas and appellant in Ortiz's stolen vehicle, and appellant had the murder weapon in his pocket along with a knife that generally fit the description of the knife used by one of the robbers. See Herron v. State, 86 S.W.3d 621, 633-34 (Tex.Crim.App. 2002) (holding defendant's possession of murder weapon was corroborative of accomplice's testimony). Furthermore, at the time of his arrest, appellant was wearing clothes that generally fit the description Ortiz gave of the clothes worn by the knife-wielding robber. Taken together, the foregoing evidence tends to connect appellant to the charged offense and sufficiently corroborates Barajas's accomplice testimony. Appellant additionally urges that the evidence was insufficient to corroborate the suggestion in Barajas's testimony that appellant should have anticipated that the murder would result from carrying out the robbery. However, the accomplice witness rule does not require that evidence corroborate the accomplice's testimony regarding every element of the crime charged; it requires instead that there be some corroborative evidence that tends to connect the accused to the commission of the offense. See Hernandez, 939 S.W.2d at 176; Cooper, 631 S.W.2d at 510. As stated, that burden has been met here. Accordingly, we overrule appellant's first issue. Lesser Included Offense
In his second issue, appellant contends that the trial court erred in failing to instruct the jury on the lesser included offense of aggravated robbery. Whether one offense is a lesser included offense of another is determined by application of article 37.09 of the Code of Criminal Procedure. Tex. Code Crim. Proc. art. 37.09. The Court of Criminal Appeals recently clarified the two-step analysis to be used in applying article 37.09. Hall v. State, 225 S.W.3d 524, 534-37 (Tex.Crim.App. 2007). In the first step, the elements of the offense as alleged in the indictment are compared to the statutory elements of the potential lesser included offense. Id. at 535-36. If the elements of the lesser offense could be established by proof of the same or less than all of the facts required to establish the commission of the charged offense, then the analysis moves to the second step. Id. at 536-37. Here, the parties agree that under the circumstances of this case, aggravated robbery was a lesser included offense of capital murder. We therefore move to consideration of the second analytical step. In the second step, the evidence adduced at trial must be reviewed to determine if there is some evidence to support instructing the jury on the lesser included offense. Id. In order to support submission of the lesser included offense, the evidence must include proof of the lesser offense, and the evidence must show that if the defendant is guilty, he is guilty only of the lesser included offense. Id. (citing Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994)). Submission of a lesser-included offense is not required simply because the jury may disbelieve crucial evidence pertaining to the greater offense; rather, there must be some evidence directly germane to the lesser-included offense before an instruction on a lesser-included offense is warranted. Hampton v. State, 109 S.W.3d 437, 441 (Tex.Crim.App. 2003). Rather than pointing to evidence affirmatively demonstrating that he committed only aggravated robbery, appellant essentially challenges the sufficiency of the evidence to demonstrate that he should have anticipated that Barajas was going to kill Christian Cuevas. He points out that there is no proof in the record that Barajas ever said that if a victim fled or resisted he would kill the victim. However, while this point may have caused the jury to closely consider Barajas's testimony regarding what appellant did know on the night of the murder (e.g., that they were going to commit a robbery and that Barajas was armed with a pistol), it does not constitute evidence directly germane to the lesser-included offense, which suggests if appellant is guilty, he is guilty only of the lesser included offense. Appellant further emphasizes that the record shows appellant and Barajas participated in prior aggravated robberies wherein no one was injured or killed. Contrary to appellant's assertion that this evidence shows he did not have reason to anticipate that murder may occur in the course of the aggravated robbery, it demonstrates instead that appellant in fact knew that they were going to commit robbery armed with a deadly weapon. See, e.g., Love v. State, 199 S.W.3d 447, 454-55 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (holding that defendant's participation in robbery with knowledge that co-conspirator might use a gun in committing the robbery was sufficient to sustain conviction for capital murder under the law of parties). Accordingly, we overrule appellant's second issue. We affirm the trial court's judgment.