Opinion
No. 01-04-00784-CR
June 30, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 177th District Court, Harris County, Texas, Trial Court Cause No. 0939833.
Panel consists of Justices TAFT, ALCALA, and HIGLEY.
MEMORANDUM OPINION
Appellant, Juan Antonio Pena, was indicted for the felony offense of capital murder. It was alleged that, during the course of committing or attempting to commit robbery, he intentionally caused the death of Christopher Harrell. Appellant pleaded not guilty, but a jury found him guilty of capital murder. Because the State did not seek the death penalty, the trial court assessed punishment at confinement for life in prison, the only alternative sentence for capital murder. In his first point of error, appellant contends that the evidence is legally insufficient to support his conviction because the non-accomplice evidence was insufficient to corroborate the accomplice-witness testimony. Appellant's remaining six points of error assert that the trial court erred by (1) refusing to give any accomplice-witness jury instruction for two of the State's witnesses, Antonio Tunal and Petra Cortina, (2) refusing to give an instruction to the jury that Ramon Villareal was an accomplice "as a matter of law," (3) admitting hearsay testimony, and (4) allowing improper jury argument by the State's attorney. We affirm.
Factual Background
Approximately twice a month, Armando Hernandez sold crack cocaine to Harrell for cash. In January 2003, Hernandez and Villareal drove to Harrell's house in northeast Harris County to deliver crack cocaine to Harrell. Villareal waited in his car while Hernandez entered the residence to deliver the narcotics. As they drove from the residence, Hernandez told Villareal that he wanted to rob Harrell to steal his gun collection, which consisted of rifles, handguns, and AR15's. Villareal agreed to participate in the robbery, when he and Hernandez initially discussed the plan and in later discussions, and continued to agree to participate, even after Hernandez informed Villareal that they would have to kill Harrell during the course of the robbery because Harrell knew Hernandez's family. On January 29, 2003, Villareal told Hernandez that he would not participate in the robbery because everyone in their neighborhood was aware of the plan, and he was afraid of getting caught. Villareal suggested that Hernandez contact appellant, who lived next door and whom Villareal believed would be willing to participate in the offense. That afternoon, Hernandez repeatedly telephoned Michael Salazar to request that Salazar give him a ride to buy a gun. Salazar agreed to give Hernandez a ride and picked up both Hernandez and appellant in his car. Salazar was surprised to find appellant with Hernandez because Hernandez had not mentioned, in his earlier telephone calls, that appellant would be accompanying them, and because Hernandez and appellant did not usually socialize together. At approximately 7 p.m., while the three men were in the car, Hernandez told Salazar that, instead of buying a gun, he was going to beat up the man who owned the guns and take a gun from him. When Salazar was told of the plans to steal the guns with the use of force, he formed the belief that appellant was present to assist Hernandez by intimidating people during the robbery of the gun. When the three men arrived at Harrell's residence, Salazar initially parked his car on the street, but Harrell, who was sitting inside the garage, told him to park in the driveway of the house. Appellant, Hernandez, and Harrell then entered the residence, while Salazar waited in his car, where he was talking on his cellular telephone. After 15 to 20 minutes, Hernandez and appellant came out of the house. They were carrying several guns that were wrapped in dark clothing and a small laundry basket filled with various items, which they loaded into Salazar's car. Salazar drove Hernandez and appellant from the residence to the San Jacinto bridge, where Hernandez discarded his small, black semi-automatic firearm. When Salazar inquired why Hernandez had thrown out the gun, Hernandez responded that he had shot Harrell and believed him to be dead. At approximately 9 p.m., Hernandez telephoned Antonio Tunal's residence and gave instructions to Tunal's wife to turn off the porch light to the house. When the three men arrived at the Tunal residence, Hernandez asked Tunal if he could store some rifles at the house, and Tunal agreed. Tunal provided Hernandez with a baseball bag into which the stolen guns were loaded. That bag, flashlights, a G. Loomis fishing rod, a small laundry basket containing boxes of bullets, gun cleaning tools, pistol holders, cellular telephone chargers, keys, and guns were taken into the house by appellant and Hernandez. Appellant looked inside a wallet that was also brought into the house. Approximately 20 minutes after they arrived, Hernandez, Salazar, and appellant left the Tunal residence, taking with them all of the items that had been brought into the house, except the rifles, ammunition, and the G. Loomis fishing pole. Tunal acknowledged that he knew that he was taking possession of stolen property, but said that he believed the stolen items came from a residential burglary. After leaving the Tunal residence, Salazar drove appellant and Hernandez to Petra Cortina's residence, where Salazar and appellant burned clothes in a barrel in the yard. Cortina agreed to help Hernandez sell the guns and telephoned an acquaintance, Alou Perez, who was interested in buying them. The day after the capital murder, Cortina and Hernandez went to retrieve the guns that had been left at the Tunal residence to deliver the guns to Perez. Hernandez went into the Tunal house and spoke to Tunal, but Cortina waited outside in the car. Hernandez told Tunal that "he had pulled a lick," and that he had sold the guns for $1,900 and "some work." Tunal interpreted Hernandez's comments as meaning that Hernandez had stolen property and had sold the guns for money and illegal narcotics. Perez purchased the guns from Hernandez and Cortina for $1,000 and an ounce of cocaine. Birdie, a friend of Perez, purchased a silver pistol from Hernandez and Cortina for $150. Hernandez gave Cortina a quarter of an ounce of cocaine, worth approximately $125, for her assistance in selling the guns. When Hernandez and Cortina returned to Cortina's residence, appellant was waiting inside her house. He was angry that it was taking so long to get the money and told Hernandez that he wanted his money. Instead, Hernandez gave appellant half an ounce of crack cocaine. Appellant told Hernandez and Cortina that he would kill them if any information about the incident "got out." That same day, January 30, Harrell's parents discovered his body inside his house. Harrell had been shot twice: once beneath his right eye and once on the left side of his forehead. Harrell also sustained a blunt force injury to his ear. Three shell casings for a .380 caliber gun were near Harrell's body. A search of Harrell's house revealed that the gun safe in the house was open and empty, and that the dresser drawers in the master bedroom had been pulled out. A small amount of marihuana and a device to smoke illegal narcotics were recovered inside the kitchen. Fingerprints lifted from Harrell's bathroom counter matched Hernandez's fingerprints. Other physical evidence showed that the tire impressions left at Harrell's residence were consistent with tread of the tires from Salazar's automobile. Cellular telephone records showed multiple phone calls between Hernandez and Harrell on the day Harrell was killed, and calls between Hernandez and appellant's mother's residence on the day of the capital murder. The telephone records also led officers to Salazar. Although he initially denied knowledge of the incident when questioned by police officers and then minimized his knowledge of the offense, Salazar later told police officers that he was aware of the plan to rob Harrell, that appellant was involved in the offense, and that property stolen from Harrell was left at Tunal's residence. Salazar also showed police officers where Hernandez had thrown his gun out of Salazar's car at the San Jacinto bridge, but a search of that location by police officers did not result in the recovery of the gun. Salazar identified appellant from a photospread as the person that he called "Nano," who had committed the acts he described to the police officers. Police officers executed a search warrant at Tunal's residence and recovered the G. Loomis fishing pole, .380 caliber ammunition, and marihuana. A flashlight believed to belong to Harrell was also recovered from Tunal's place of business. Tunal identified appellant from a photospread as one of the men who brought guns into his residence on the night of the offense. From a photograph of Cortina, Tunal identified her as the woman who arrived at his residence with Hernandez to pick up the guns. Cortina initially denied knowledge of the incident to police officers, but later acknowledged her role in selling the guns after the offense. For their respective roles in the robbery and murder of Harrell, Hernandez and appellant were charged with capital murder, and Salazar was charged with the lesser offense of first-degree, aggravated robbery. Salazar, Cortina, and Tunal each testified for the State at appellant's trial, and the jury learned of the criminal charges against them and of the benefits each received in exchange for their trial testimony. Salazar's cooperation with the prosecution allowed for a lowered bond and a sentencing recommendation that he receive a punishment sentence of confinement for between five and 30 years in prison. Cortina received a plea-bargained punishment of five years' community supervision, with 180 days in jail, as well as other conditions of community service for the first-degree felony charge of possession of a controlled substance, and a dismissal of a state-jail felony charge of possession of a controlled substance. Tunal, who was prosecuted for a fourth-degree, state-jail charge for possession of the marihuana recovered inside his residence when the search warrant was executed, was sentenced to 120 days in jail. The record shows that he did not receive any offers of benefit from the State for his testimony in this case. The trial court's charge to the jury instructed that Salazar was an accomplice as a matter of law, but gave no accomplice-witness instructions concerning either Tunal or Cortina. Villareal, who was not charged with any criminal offense related to Harrell's robbery and murder, also testified for the State at appellant's trial. The charge to the jury instructed the jurors to determine whether Villareal was an accomplice under the facts; the jury was not instructed that Villareal was an accomplice as a matter of law. The testimony from Salazar, who was an accomplice as a matter of law, and Villareal, whom the jury could have determined was an accomplice as a matter of fact, established the following: (1) Villareal gave Hernandez appellant's name as a person who would be interested in committing the offense; (2) Salazar took appellant and Hernandez to Harrell's residence to commit a robbery; (3) appellant and Hernandez entered Harrell's residence together with Harrell; (4) appellant and Hernandez carried items from Harrell's residence; (5) appellant was in the car with Hernandez when Hernandez discarded a firearm into the San Jacinto river and when Hernandez admitted shooting and killing Harrell; (6) appellant, Hernandez, and Salazar took the items stolen from Harrell's house to Tunal's house where they examined them; (7) appellant, Hernandez, and Salazar left a few of the stolen items at Tunal's house, but took the rest of the items with them; and (8) appellant, Hernandez, and Salazar burned clothes and other items at Cortina's house.Accomplice-Witness Jury Instructions
In his second, third, and fourth points of error, appellant contends that the trial court erred by refusing to instruct the jury that Villareal was an accomplice witness as a matter of law and by refusing to give accomplice-witness jury instructions concerning the testimony of Cortina and Tunal. Article 38.14 of the 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 (Vernon 2005); Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim.App. 1998). A trial court can give two types of accomplice-witness jury instructions. The accomplice "as a matter of law" charge instructs the jury that the witness is an accomplice as a matter of law and that the jury cannot convict upon the testimony of that witness unless his testimony is corroborated with non-accomplice evidence that tends to connect the defendant with the offense. See Blake, 971 S.W.2d at 454. The accomplice "as a matter of fact" charge, however, instructs the jury to determine whether, under the facts of the case, the witness is an accomplice, as defined by the court. The instruction further states that, if the jury determines that the witness is an accomplice, then the jury cannot convict, unless the testimony of that witness is corroborated with non-accomplice evidence that tends to connect the defendant with the offense. See id. at 455. Upon a defendant's request for an accomplice charge concerning the testimony of a witness for the State, therefore, a trial court must determine whether to give a matter of law instruction, a matter of fact instruction, or no accomplice-witness instruction. See id. An accomplice as a matter of law instruction should be included in the jury charge when no doubt exists, or the evidence clearly shows, that a witness is an accomplice witness as a matter of law; i.e., the witness is a person who is susceptible to prosecution for either the offense for which the accused is charged or for a lesser included offense. See id. at 454-55; Paredes v. State, 129 S.W.3d 530, 536 (Tex.Crim.App. 2004). An accomplice as a matter of fact instruction should be included in the jury charge when the evidence raises a fact question concerning whether the witness is an accomplice; i.e., evidence presented by the parties is conflicting, and it is not clear whether the witness is an accomplice. Blake, 971 S.W.2d at 454. An accomplice witness as a matter of fact instruction is appropriate when some doubt exists that a witness is an accomplice witness as a matter of law, "even though the evidence appears to preponderate in favor of the conclusion that the witness is an accomplice witness as a matter of law." See Gamez v. State, 737 S.W.2d 315, 322 (Tex.Crim.App. 1987); Van Buskirk v. State, 492 S.W.2d 279, 281 (Tex.Crim.App. 1973). An accomplice witness as a matter of fact instruction should also be given when a witness's testimony shows his participation in an offense, but also includes exculpatory assertions. See Marlo v. State, 720 S.W.2d 496, 500-01 (Tex.Crim.App. 1986). In determining whether a person is an accomplice, the test is not whether the witness is actually charged and prosecuted for his participation. Blake, 971 S.W.2d at 455. Rather, the record should be examined for evidence that would support a charge against the witness alleged to be an accomplice. Id. An accomplice is a person who participates before, during, or after the commission of the crime, under circumstances that show that he is connected to the criminal offense as a blameworthy participant. See id. at 454. A person may be criminally responsible for his own conduct and for another person's conduct when the person acts (1) "with intent to promote or assist the commission of the offense," and (2) "solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). A person is not an accomplice if he is merely present at the scene of the offense. See Blake, 971 S.W.2d at 454. Additionally, a person is not an accomplice if he agrees to participate in the commission of the offense, but later does not, as long as no circumstances show the person's affirmative act or criminal omission in furtherance of the offense. See Ferguson v. State, 573 S.W.2d 516, 523 (Tex.Crim.App. 1978); Bacey v. State, 990 S.W.2d 319, 327 (Tex.App.-Texarkana 1999, no pet.). A person is not an accomplice if he knows about a crime and fails to disclose it, or even if he conceals it. Blake, 971 S.W.2d at 454. Moreover, a person is not an accomplice if he commits other crimes with the accused, as long as there is no showing that the witness participated in the offense at issue. See Kunkle v. State, 771 S.W.2d 435, 439 (Tex.Crim.App. 1986). Antonio Tunal The trial court refused to give the jury any accomplice-witness instruction concerning Tunal. Appellant contends that Tunal was an accomplice witness because he testified as follows: (1) Tunal often socialized with Hernandez, (2) on the night of the capital murder, Salazar, Hernandez, and appellant brought items stolen from Harrell's residence into Tunal's residence, and some of those items were recovered by police officers when the search warrant was executed, (3) Tunal knew that Hernandez had instructed Tunal's wife to turn off the porch light of Tunal's residence before Hernandez arrived there, and (4) Tunal testified that he believed the men "broke in a house or something." Appellant also asserts that a police officer referred to Tunal as a suspect in the capital murder of Harrell. Appellant further contends that, because the State's attorney represented to the trial court that statements by Hernandez to Tunal were admissible as coconspirator statements, the State should be estopped from asserting on appeal that Tunal was not a coconspirator in the capital murder. The record shows only that Tunal was guilty of receiving property stolen from Harrell. See Tex. Pen. Code Ann. § 31.02 (Vernon 2003) (stating that receiving or concealing stolen property constitutes theft). No evidence in the record shows that Tunal knew that anyone was physically harmed when the property was stolen. No evidence in the record shows that Tunal participated in the robbery of Harrell or his murder, either before, during, or after the commission of the offense. Without evidence showing that Tunal did more than merely receive property stolen from Harrell, therefore, the trial court did not err by refusing to include an accomplice-witness instruction in the jury charge. See Kunkle, 771 S.W.2d at 439 ("[C]omplicity with an accused in the commission of another offense does not make that witness'[s] testimony that of an accomplice witness for the offense for which the accused is on trial if there is no showing of the witness'[s] complicity in that offense."). Without citation to any authority, appellant contends that the State should be estopped from claiming, on appeal, that Tunal was not an accomplice. Appellant contends that the State represented to the trial court that Tunal and Hernandez were coconspirators when it argued to the trial court that Hernandez's hearsay statements were admissible under the coconspirator statement exception to the hearsay rule. The record supports appellant's contention that the State portrayed Tunal as a coconspirator of Hernandez when it argued that Hernandez's hearsay statements were admissible through Tunal's testimony. The State's arguments to the trial court however, never specified what crime Hernandez and Tunal conspired to commit. The State never asserted to the trial court that Hernandez and Tunal conspired to commit the robbery or murder of Harrell, and, as previously discussed, nothing in the record supports that assertion. Even if we were to conclude that the law of estoppel applied, we cannot conclude that, by merely generally referring to Hernandez and Tunal as coconspirators, the State represented to the trial court that they were coconspirators in the robbery or murder of Harrell, rather than simply coconspirators in the disposition of property stolen from Harrell. Because the State's arguments to the trial court were not sufficiently specific to be inconsistent with the State's arguments to this court on appeal, we hold that the trial court did not err by refusing to include an accomplice-witness instruction concerning Tunal in the jury charge. We overrule appellant's second point of error. Petra Cortina The trial court also refused to give the jury any accomplice-witness instruction concerning Cortina. Appellant contends that Cortina was an accomplice witness because she testified as follows: (1) she was present when appellant and Salazar destroyed clothes and a basket outside her house following the murder, (2) she helped Hernandez sell the weapons taken during the capital murder, (3) she knew Salazar, Hernandez, and appellant from her neighborhood, (4) she acknowledged lying to police officers about her knowledge of the offense, (5) she said that when she sold the guns to her friends, she did not know that they were stolen, and (6) she said that appellant threatened to kill her "if any of this got out." The record shows, at most, that Cortina was guilty only of receiving and selling property stolen from Harrell. See Tex. Pen. Code Ann. § 31.02 (Vernon 2003). Although the record shows that appellant and Hernandez burned clothes at Cortina's house on the night of the capital murder of Harrell, no evidence in the record shows that Cortina knew that anyone had been physically harmed when the property was stolen, and Cortina claimed that she did not know that the guns were stolen when she participated in selling them. Because no evidence in the record shows that Cortina was a participant in the robbery or murder of Harrell, either before, during, or after the commission of the offense, we hold that the trial court did not err by refusing to give the jury an accomplice-witness instruction concerning Cortina. We overrule appellant's third point of error. Ramon Villareal The trial court included in the jury charge an accomplice as a matter of fact instruction regarding Villareal, but refused appellant's request to instruct the jury that Villareal was an accomplice as a matter of law. Appellant contends that the evidence shows that Villarreal was an accomplice as a matter of law because Villareal testified that (1) after agreeing to participate with Hernandez in the robbery of Harrell, he continued to agree to help Hernandez, even after Hernandez told him that Harrell would have to be killed, (2) he withdrew from the plan to rob and kill Harrell on the day of the offense, and (3) he suggested that Hernandez ask appellant to take part in the crime. The record shows that Villareal testified that he agreed to participate with Hernandez in the robbery and murder of Harrell, but that Villareal withdrew from the plan on the day of the offense. At the point when Villareal withdrew from the agreement to rob and kill Harrell, Villareal had not committed an affirmative act in furtherance of the conspiracy to kill Harrell. See Blake, 971 S.W.2d at 454 (stating that an affirmative act or omission is required for person to be accomplice.) But, the agreement to commit the crime does not, by itself, constitute an affirmative act. See Ferguson, 573 S.W.2d at 523; Bacey, 990 S.W.2d at 327. Therefore, Villareal's agreement to commit the offense was insufficient to make him an accomplice. Appellant also contends that Villareal became an accomplice as a matter of law because he suggested that Hernandez contact appellant about whether he was interested in taking part in the offense. Suggesting appellant's name as a person who could help in the commission of the offense could constitute evidence of Villareal's actions to encourage, aid, or attempt to aid Hernandez in the commission of the robbery and murder of Harrell. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). The record, however, contains inconsistent evidence concerning whether Villareal gave Hernandez appellant's name while acting "with intent to promote or assist the commission of the offense." See id. The record shows that, during his trial testimony, Villareal said that he suggested that Hernandez ask appellant to take part in the offense. The record also shows, however, that Villareal clearly stated that he did not wish to participate in or play any role in the robbery or murder of Harrell. Villareal told Hernandez, "I'm out, I'm not going to take part in this killing and taking these guns, go ask [appellant]." Villareal further testified that he did not participate in the offense himself because he did not think that the prospect of killing someone for his guns was "right." Moreover, Villareal was impeached with statements he had made earlier to police officers in which he denied that he ever suggested appellant's name to Hernandez. Because the evidence of whether Villareal acted with intent to promote or assist the robbery or murder of Harrell is conflicting and unclear, the trial court properly submitted an accomplice as a matter of fact instruction to the jury as to Villareal and not an accomplice as a matter of law instruction. See Paredes, 129 S.W.3d at 536; Mize v. State, 915 S.W.2d 891, 895-96 (Tex.App.-Houston [1st Dist.] 1995), pet. ref'd, 922 S.W.2d 175 (Tex.Crim.App. 1996) (holding that evidence did not demonstrate witness's intent to commit theft as matter of law but conflicting evidence on intent did raise fact issue for jury). We hold that the trial court did not err by refusing to instruct the jury that Villareal was an accomplice as a matter of law. We overrule appellant's fourth point of error.Sufficiency of Evidence Corroborating Accomplice-Witness Testimony
In his first issue, appellant contends that the evidence is insufficient to support his conviction because the State failed to corroborate the accomplice-witness testimony of Michael Salazar, who was an accomplice as a matter of law, and Ramon Villareal, whom the jury was instructed to determine whether he was an accomplice under the facts shown. We cannot know whether the jury determined that Villareal was an accomplice under the facts shown, but will assume that he was an accomplice for purposes of this analysis of the sufficiency of the evidence. Although appellant contends that Tunal and Cortina were also accomplices, we have already determined that they were not, for the reasons previously stated. To be sufficient to sustain a conviction, accomplice-witness testimony must be corroborated by other evidence that tends to connect the defendant with the offense committed. Tex. Code Crim. Proc. Ann. art. 38.14. The corroboration is not sufficient if it merely shows the commission of the offense. Id. The accomplice-witness rule is a statutorily imposed sufficiency standard that requires that non-accomplice evidence tend to connect the defendant with the offense; the rule is not derived from the state or federal constitutional principles that otherwise govern legal and factual sufficiency review. Cathey v. State, 992 S.W.2d 460, 462-63 (Tex.Crim.App. 1999). To test the sufficiency of corroborative evidence, we eliminate the testimony of the accomplice witnesses from consideration and then examine the testimony of other witnesses to ascertain whether the non-accomplice evidence tends to connect the accused with the commission of the offense. Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App. 1997); Reed v. State, 744 S.W.2d 112, 125 (Tex.Crim.App. 1988); St. Julian v. State, 132 S.W.3d 512, 516 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). The non-accomplice evidence need not be sufficient, by itself to establish the accused's guilt beyond a reasonable doubt. Hernandez, 939 S.W.2d at 176; St. Julian, 132 S.W.3d at 516. And the non-accomplice evidence need not directly link the defendant to the commission of the crime. Hernandez, 939 S.W.2d at 176; Reynolds v. State, 489 S.W.2d 866, 872 (Tex.Crim.App. 1972). All the law requires is that some non-accomplice evidence tends to connect the accused to the commission of the offense. Hernandez, 939 S.W.2d at 176 (emphasis in original); St. Julian, 132 S.W.3d at 516. Thus, incriminating circumstances that are seemingly insignificant may be sufficient, corroborative evidence to satisfy the accomplice-witness rule. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App. 1996); Munoz v. State, 853 S.W.2d 558, 559 (Tex.Crim.App. 1993). In evaluating the sufficiency of the corroboration, we consider each case on its own facts and circumstances and look to all facts as furnishing the corroboration. See Munoz, 853 S.W.2d at 559. While these circumstances might not be sufficient individually to corroborate the accomplice's testimony, taken together, rational jurors could conclude that this evidence sufficiently tended to connect the defendant to the offense. Hernandez, 939 S.W.2d at 178-79; see also Cox v. State, 830 S.W.2d 609, 612 (Tex.Crim.App. 1992) (holding that evidence of other suspicious circumstances filled sufficiency gap arising from evidence of appellant's mere presence at scene of offense). Evidence that the defendant was in the company of the accomplice at or near the time or place of a crime is proper corroborating evidence to support a conviction. Hernandez, 939 S.W.2d at 178; see Jackson v. State, 745 S.W.2d 4, 13 (Tex.Crim.App. 1988) (presence in company of accomplice near time of offense not alone conclusive, but important factor for corroboration). The non-accomplice evidence that tends to connect appellant with the capital murder of Harrell shows as follows: (1) Tunal testified that, on the night of the offense, appellant, Hernandez, and Salazar came to his residence with guns and other property, including the G. Loomis fishing pole later seized at Tunal's residence, which Tunal believed had been stolen; (2) Police officers recovered the G. Loomis fishing pole while executing the search warrant at Tunal's house. At trial, Harrell's father identified the custom made fishing pole as Harrell's. Additionally, although the flashlight that was recovered from Tunal's place of business was not specifically identified as belonging to Harrell, an empty case for the same type of flashlight was found at Harrell's residence; (3) Cortina testified that she observed appellant, Hernandez, and Salazar burning clothes and a basket on the night of the offense; (4) Cortina testified that appellant told Hernandez that he wanted his money after Hernandez sold the stolen guns to Perez and Birdie; (5) Cortina testified that appellant threatened to kill her and Hernandez if they told anyone what they knew; and (6) Cortina gave police officers the address where they could find the gun that she and Hernandez had sold. Upon researching the address given to them by Cortina, the police found that a recent arrest had been made at that address, and that a Smith and Wesson .357 revolver had been recovered there. The serial number for the .357 revolver recovered from the house where Cortina led the police matched the serial number on a receipt given to Harrell when he purchased the gun from a friend. Under these circumstances, the non-accomplice evidence sufficiently tends to connect appellant to the offense. See Gill v. State, 873 S.W.2d 45, 48-49 (Tex.Crim.App. 1994) (holding that non-accomplice evidence, which showed that robbery occurred, that Gill had the opportunity to commit robbery, that Gill and his accomplice acted secretively shortly after commission of offense, and that Gill and his accomplice possessed items taken in robbery was sufficient to corroborate accomplice-witness testimony). We hold that the non-accomplice evidence sufficiently corroborated the accomplice-witness testimony. We overrule appellant's first point of error.Hearsay Statements
In his fifth point of error, appellant contends that the trial court abused its discretion by admitting, over appellant's objection, hearsay statements by Hernandez to Villareal, Salazar, and Tunal. Appellant argues that the trial court erred by (1) allowing Villareal to testify that Hernandez recruited Villareal to rob and kill Harrell; (2) allowing Salazar to testify that Hernandez asked Salazar for a ride to buy a gun and then changed the request to needing a ride to take the gun with the use of force; (3) allowing Salazar to report Hernandez's statement that he had shot the gun owner and believed him to be dead; and (4) allowing Tunal to testify that Hernandez told Tunal that he got the guns by "pulling a lick" when "they went inside, took care of business," and that those statements caused Tunal to form the impression that Hernandez had stolen the guns. The State contends that Hernandez's statements to Villareal and Salazar were admissible as statements made to coconspirators in furtherance of a conspiracy, and that the statements to Tunal were admissible as statements against penal interest. We review a trial court's ruling to admit or exclude evidence for abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Coconspirator statements are not hearsay and are not subject to the exclusionary rule. See Tex. R. Evid. 801(e)(2)(E). The admissibility of an out-of-court statement under an exception to the general hearsay exclusion rule is within the trial court's discretion. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003); Lawton v. State, 913 S.W.2d 542, 553 (Tex.Crim.App. 1995). Therefore, a reviewing court should not reverse unless a clear abuse of discretion is shown. Zuliani, 97 S.W.3d at 595; Coffin v. State, 885 S.W.2d 140, 153 (Tex.Crim.App. 1994). For hearsay to be admissible, it must fit an exception provided by a statute or the Rules of Evidence. Tex. R. Evid. 802. Coconspirator Statements An out-of-court statement offered to prove the truth of the matter asserted is not hearsay if it is (1) offered against a party and is (2) a statement made by a coconspirator during the course of, and in furtherance of, the conspiracy. See Tex. R. Evid. 801(e)(2)(E); Crum v. State, 946 S.W.2d 349, 363 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd). A conspiracy exists when two or more persons, as shown by words or deed, agree to do an unlawful act. Crum, 946 S.W.2d at 363; Butler v. State, 758 S.W.2d 856, 860 (Tex.App.-Houston [14th Dist.] 1988, no pet.). To satisfy the coconspirator exception to the hearsay rule, the State must show that (1) at the time the statements was made, the alleged coconspirator was participating in a conspiracy in which the defendant also participated or later joined and (2) the statement was made in furtherance of the conspiracy. Ward v. State, 657 S.W.2d 133, 136-37 (Tex.Crim.App. 1983); Peoples v. State, 928 S.W.2d 112, 116 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). Statements made in furtherance of a conspiracy include those made (1) with intent to induce another to deal with coconspirators or in any other way to cooperate with or assist coconspirators, (2) with intent to induce another to join the conspiracy, (3) in formulating future strategies of concealment to benefit the conspiracy, (4) with intent to induce continued involvement in the conspiracy, or (5) to identify the role of one conspirator to another. Crum, 946 S.W.2d at 363. Conversely, statements that are not in furtherance of a conspiracy, and thus remain hearsay, include those that are (1) casual admissions of culpability to someone the declarant had individually decided to trust, (2) mere narrative descriptions, (3) mere conversations between conspirators, or (4) "puffing" or "boasts" by coconspirators. Id. Appellant asserts that the trial court erred by allowing Villareal to testify that Hernandez recruited Villareal to rob and kill Harrell. The record shows that, although Villareal later withdrew from the conspiracy, there was a period of time in which Hernandez and Villareal had an agreement to rob and kill Harrell. Hernandez's statements to Villareal were made during the course of their discussions to commit the offense together, and to further the purpose of the conspiracy to rob and kill Harrell. See id. (stating that statements made with intent to induce another to join conspiracy are admissible as non-hearsay under coconspirator exception to hearsay rule). We cannot conclude that the trial court abused its discretion by allowing Villareal to testify that Hernandez recruited Villareal to rob and kill Harrell. Appellant further contends that the trial court erred by allowing Salazar to testify (1) that Hernandez asked him for a ride to buy a gun and then changed the request to needing a ride to take the gun with the use of force, and (2) that Hernandez stated that he had shot the gun owner and believed him to be dead. The record shows that Salazar and Hernandez were coconspirators in the robbery of Harrell, and that Salazar drove Hernandez and appellant to and from Harrell's house and other places to dispose of property stolen from Harrell. The statement that Hernandez needed a ride so that he could take the gun with the use of force furthered the conspiracy by informing Salazar of the events that were to transpire at Harrell's house after Salazar drove them there. See id. (stating that statements made in furtherance of conspiracy include those made with intent to induce another to deal with coconspirators or in any other way to cooperate with or assist coconspirators). Additionally, Hernandez's statement to Salazar, that he believed he had killed Harrell, was made after Salazar drove Hernandez to the bridge where he disposed of the gun, but before Salazar and Hernandez disposed of property stolen from Harrell's house. The trial court acted within its discretion by implicitly finding that the statement was made with intent to induce continued involvement in the conspiracy. See id. We hold that the trial court did not abuse its discretion by admitting Hernandez's statements recounted by Villareal and Salazar as non-hearsay statements by a coconspirator. Statements Against Penal Interest Appellant contends that the trial court erred by allowing Tunal to testify that Hernandez told Tunal that he got the guns by "pulling a lick" when "they went inside, took care of business" and that those statements caused Tunal to form the impression that Hernandez had stolen the guns. The trial court ruled that this instance of hearsay was admissible as a statement against Hernandez's penal interest. See Tex. R. Evid. 803(24). The following is not excluded by the hearsay rule, even if the declarant is available as a witness:Statement against interest.
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject [him] to civil or criminal liability, or to render invalid a claim by [him] against another, or to make [him] an object of hatred, ridicule, or disgrace, that a reasonable person in declarant's position would not have made the statement unless believing it to be true . . . [A] statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.Tex. R. Evid. 803(24) (emphasis added). Determining the admissibility of a statement in accordance with rule 803(24) requires a two-step inquiry. Bingham v. State, 987 S.W.2d 54, 57 (Tex.Crim.App. 1999). If both criteria are met, rule 803(24) is satisfied. Id. The trial court must first determine whether the statement in question tends to expose the declarant to criminal liability. Id.; see Williamson v. United States, 512 U.S. 594, 599-601, 114 S. Ct. 2431, 2435 (1994); Cofield v. State, 891 S.W.2d 952, 955 (Tex.Crim.App. 1994). Second, the trial court must determine, by considering a number of factors, whether there are corroborating circumstances that clearly indicate the trustworthiness of the statement. See Tex. R. Evid. 803(24); Woods v. State, 152 S.W.3d 105, 113 (Tex.Crim.App. 2004); Bingham, 987 S.W.2d at 57. The factors may include the following: (1) whether the guilt of the declarant is inconsistent with the guilt of the accused; (2) whether the declarant was so situated that he might have committed the crime; (3) the timing of the declaration and its spontaneity; (4) the party to whom the declaration was made; and (5) the existence of independent, corroborating facts. Cunningham v. State, 877 S.W.2d 310, 312 (Tex.Crim.App. 1994); Davis v. State, 872 S.W.2d 743, 749 (Tex.Crim.App. 1994). Under the first prong, Hernandez was potentially exposed to criminal liability by stating that he had stolen the property by "pulling a lick," entering the residence, and taking care "of business." Applying the five rule 803(24) factors to the statements made by Hernandez to Tunal under the second prong indicates that the statements were admissible. Tunal's guilt for his role in storing the stolen property was not inconsistent with Hernandez's role in the robbery and murder of Harrell. Nothing in the record suggests that Tunal was a party to or committed the offense. The admission by Hernandez was made on the day following the offense and was related to Hernandez's explanation of his decision to pick up the stolen items that he had left at the Tunal residence on the night of the robbery and murder. Tunal and Hernandez apparently had a relationship in which they trusted each other with valuable property. Finally, independent facts corroborate the credibility of the statement. Police officers recovered stolen property that belonged to Harrell in Tunal's possession. Salazar also testified that Hernandez took items from Harrell's residence into Tunal's residence. We hold that the trial court did not abuse its discretion by allowing into evidence, under the rule 803(24) exception for statements against penal interest, statements by Hernandez that Tunal recounted at trial. We overrule appellant's fifth point of error.
State's Closing Arguments
In his final two points of error, appellant asserts that the trial court erred by overruling appellant's objections to the State's closing arguments. Proper jury argument includes four areas: (1) summation of the evidence presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel's argument, or (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App. 2000). Appellant contends that the State attorney's suggestion, that Salazar's testimony was corroborated by physical evidence of his tire impressions at the scene of the crime, was a misstatement of the law concerning corroboration. Appellant's counsel objected to the following:But, if you want to dig a little deeper, which your charge tells you you should because you need corroboration, at least of Michael Salazar's testimony, then you look at the physical evidence. Michael says things like, "I pulled into the driveway." You know what, he's not lying about that. There's those tire impressions.The State's argument, that the tire tracks were physical evidence consistent with Salazar's testimony, properly summarized the evidence introduced in the trial. We agree with appellant, however, that the State's argument — that the jury could use the tire impression to corroborate Salazar's testimony, "which your charge tells you you should because you need corroboration, at least of Michael Salazar's testimony" — impliedly misstated the law concerning corroboration. The jury charge stated as follows:
The witness, Michael Salazar, is an accomplice, if an offense was committed, and you cannot convict the defendant upon his testimony unless you further believe that there is other evidence in the case, outside of the testimony of Michael Salazar tending to connect the defendant with the offense committed, if you find that an offense was committed, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission, and then from all of the evidence, you must believe beyond a reasonable doubt that the defendant is guilty of the offense charged against him.As the charge explained, for the evidence to be legally sufficient to sustain a conviction, the non-accomplice evidence must tend to connect the defendant with the offense committed. See Tex. Code Crim. Proc. Ann. art. 38.14. Because the tire impressions did not link the defendant to the offense in any way, they did not constitute non-accomplice evidence that could be used to tend to connect the defendant with the offense, as required by article 38.14. See id. Instead, the tire impressions were evidence pertinent to Salazar's credibility as a witness. The State's argument, that the jury could determine whether Salazar was lying or not by looking to the physical evidence such as the tire tracks, was proper because the statement was limited in scope to Salazar's credibility as a witness. But, the State's suggestion that the jury could use the tire tracks as physical evidence to meet the corroboration requirement in the charge misstated the accomplice-witness law under article 38.14. See id. Accordingly, the trial court erred by overruling appellant's objection to the prosecutor's argument. See Cook v. State, 540 S.W.2d 708, 710 (Tex.Crim.App. 1976) (holding that misstatement of law is improper jury argument). Rule 44.2(b), which now governs reversible error in criminal cases, requires that we disregard all error, except constitutional error, "that does not affect [appellant's] substantial rights." See Tex.R.App.P. 44.2(b). Appellant does not contend that the trial court's error was constitutional. The Court of Criminal Appeals has identified the three following factors as relevant for assessing the impact of harm arising from nonconstitutional, jury-argument error under rule 44.2(b): (1) the "severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks)," (2) the "measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge)," and (3) the "certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction)." See Threadgill v. State, 146 S.W.3d 654, 666-67 (Tex.Crim.App. 2004) (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998)). The first harm factor, the degree of misconduct, was minimal in this case. The State's attorney's argument did not expressly tell the jury that the tire impressions were evidence that tended to connect appellant with the offense. Instead, it appears that the State began a statement about the corroboration requirement in the charge, but changed the argument midstream to an argument about the credibility of the witness. It appears that the prosecutor's argument was a good faith, yet mistaken, attempt to imply that, because the physical evidence of the tire impression could be used as evidence of Salazar's credibility, the tire impressions could also be used to corroborate Salazar's testimony under the charge. As to the second factor, the trial court gave no curative instruction because it had overruled appellant's objection to the argument, and appellant did not request that the trial court instruct the jury to disregard the comment. Regarding the third factor, we conclude that the State's argument could have played only a slight role, if any, in the jury's decision to convict appellant. The comment comprised a single sentence within the prosecutor's argument and was not reiterated. Moreover, the prosecutor proceeded in closing argument as if the objection had been granted and switched to discussing other forms of corroborating physical evidence. Although the prosecutor referred again briefly to the evidence of the tire impressions during closing argument, the prosecutor properly limited the discussion of the tire impressions to their relation to Salazar's credibility as a "truth teller." As the jury charge instructed, and as appellant's attorney explained to the jury during his closing statements, non-accomplice evidence must tend to connect the defendant with the offense. The tire-impression evidence plainly did not connect appellant to the offense, but was relevant only to Salazar's credibility as a witness. The record of the trial of this case shows that Salazar saw appellant enter Harrell's residence and then exit, carrying guns and a fishing pole belonging to Harrell. Cortina testified that appellant threatened to kill her and Hernandez if she told anybody what had happened, and witnesses saw appellant with Harrell's property and saw appellant burn his clothes on the night of the offense. Accordingly, although the prosecutor improperly implied that the jury could use evidence of the tire impressions to corroborate Salazar's testimony, we cannot say that overruling the objection was harmful error under the record presented here. Appellant further contends that the State's attorney argued outside the record by suggesting that Villareal's testimony was corroborated by evidence of a telephone call between appellant and Hernandez because no such evidence existed. The argument of the State objected to by defense counsel is as follows:
How can we corroborate that? Well, you've got the phone call between Pena [Appellant] and Hernandez. No, I can't prove to you that it was actually Hernandez on the phone to Pena, but isn't that a reasonable inference from the evidence? You know what, do you think Pena's mother is calling Hernandez just to chat with him? No. That's silly. That phone call was for them to talk about "You know what, tonight I'm going to come by. I'll pick you up and we are going to go to my in-law's and we have got Michael Salazar waiting for us."The State's argument was a reasonable deduction from the evidence that a telephone call was made between Hernandez and appellant's mother's residence following Villareal's suggestion that Hernandez telephone appellant to assist in the robbery and murder of Harrell. Although there is no direct evidence of the contents of that conversation, the State's argument comported with evidence admitted during the trial, which showed that Salazar picked up Hernandez and appellant at Hernandez's mother-in-law's house. We hold that the State's argument was a reasonable deduction from the evidence admitted at trial. We overrule points of error six and seven.