Brushy Creek Enterprises, Inc. and Tahseen Khan, Individually v. Heller First Capital Corp.--Appeal from 345th District Court of Travis County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 2010 » Brushy Creek Enterprises, Inc. and Tahseen Khan, Individually v. Heller First Capital Corp.--Appeal from 345th District Court of Travis County

State: Texas

Court: Criminal Court of Appeals

Docket No: 03-07-00542-CV

Case Date: 07/07/2010

Plaintiff: JOSEPH DENVER SMITH

Defendant: THE STATE OF TEXAS (Original)

Preview:Derek Pena v. The State of Texas--Appeal from 187th
Judicial District Court of Bexar County
MEMORANDUM OPINION
No. 04- 05-00496-CR
Derek PENA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2004-CR-1847E
Honorable Raymond Angelini , Judge Presiding
Opinion by: Sandee Bryan Marion , Justice
Sitting: Alma L. L pez, Chief Justice
Sandee Bryan Marion , Justice
Phylis J. Speedlin, Justice
Delivered and Filed: June 21, 2006
AFFIRMED AS MODIFIED
Defendant Derek Pena was convicted of capital murder and sentenced to life imprisonment. On appeal, defendant
asserts (1) the evidence is legally and factually insufficient to support the jury's verdict, (2) the State's accomplice
witness evidence was not sufficiently corroborated, and (3) the trial court erred in including a deadly weapon finding in
the trial court's judgment. We modify the judgment to delete the deadly weapon finding and affirm as modified.
SUFFICIENCY OF THE EVIDENCE AND "ACCOMPLICE-WITNESS RULE"
In his first two issues, defendant complains the evidence is legally and factually insufficient because it was
unforeseeable that Apolinar Soto, the undisputed shooter, intended to shoot the victim, and that Apolinar did not shoot
the victim in furtherance of the robbery, but rather shot him because Apolinar believed the victim had "slept with his
girl." We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia,
443 U.S. 307, 319 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)
(same);Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004) (factual sufficiency); Clewis v. State, 922 S.W.2d
126, 129 (Tex. Crim. App. 1996) (same). The standard of review is the same in both direct and circumstantial evidence
cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999). In his third issue, defendant asserts the non-
accomplice evidence did not tend to connect defendant to the capital murder, but only connected him to a mere
presence at the robbery. Accomplice-witness testimony is "inherently suspect." Jones v. State, 982 S.W.2d 386, 389 n.
5 (Tex. Crim. App. 1998). Therefore, the "accomplice-witness rule" provides that a conviction cannot stand on
accomplice testimony unless there is other evidence tending to connect the defendant to the offense. Tex. Code Crim.
Proc. Ann. art. 38.14 (Vernon 2005); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Evidence that
proves merely the commission of the offense is insufficient to meet the standard. Cathey v. State, 992 S.W.2d 460, 462
(Tex. Crim. App. 1999). Also, accomplice-witness evidence that establishes the defendant was in the company of the
file:///C|/Users/Peter/Desktop/opinions/PDFs1/19300.html[8/20/2013 7:48:39 PM]

accomplice before, during, and after the commission of the offense is insufficient corroboration.Dowthitt v. State, 931
S.W.2d 244, 249 (Tex. Crim. App. 1996). However, it is not necessary for the evidence to directly link the defendant
with the offense. See Knox v. State, 934 S.W.2d 678, 686 (Tex. Crim. App. 1996). Instead, when conducting a
sufficiency review under the accomplice-witness rule, a reviewing court must first eliminate the accomplice testimony
from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to
connect the defendant with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App.
2001). Because the standard is "tendency to connect," rather than a rational sufficiency standard, the corroborating
evidence need not be sufficient by itself to establish guilt. Id. If the combined weight of the non-accomplice evidence
tends to connect the defendant to the offense, the requirement of article 38.14 has been fulfilled. Cathey, 992 S.W.2d at
462. This court may consider all facts and circumstances to establish corroboration and the corroborative evidence may
be circumstantial or direct. Gosch v. State, 829 S.W.2d 775, 777 (Tex. Crim. App. 1991).
NON-ACCOMPLICE EVIDENCE
On the night of December 16, 2003, a Sonic store was robbed and one of Sonic's employees, Christopher Roel, was
shot twice in the back and died as a result of the gunshot wounds. Martha Gallegos Colin, the store manager, and her
employees, Christopher Roel and Trinidad Pena, were closing the store that night. Erica Ruiz and Noel Gonzales, two
other Sonic employees, left work early, but returned to the store to meet up with their co-workers. As Erica was
locking the door, she saw Apolinar Soto entering the door behind her. Trinidad also saw individuals running into the
store and recognized one person by his voice as Apolinar Soto. Erica and Trinidad knew Apolinar because his
girlfriend worked at Sonic, and Erica and Trinidad would see him when he would visit his girlfriend at the store. As he
entered the store, Apolinar grabbed Erica and threw her to the floor. Apolinar told everyone to get on the floor and
then shot a gun in the air. Martha and Erica testified that a female came in with Apolinar and went to Martha and told
her to "hurry up with the money." Martha gave the female the money from the safe and the register. Erica testified that
Apolinar told someone "don't run" and shot twice. Apolinar and the individuals he came with left the store. Martha got
up, locked the door, and called 911. Christopher was lying on the floor in the back of the store gasping for air.
Trinidad gave Christopher CPR until the ambulance arrived.
Detective Greiner questioned Natalie Lugo, Jason Martinez, and Scott Aguilar about the night of the robbery. From
that questioning, Detective Greiner identified Mark Alvarado and defendant as possible suspects. Natalie, Jason, Scott,
Mark, Apolinar, and defendant were all arrested for the robbery. During an interrogation, Natalie signed a consent
form to search her house. The police went to Natalie's home and found a gun in her room and money hidden in her
sister's room. The Bexar County Crime Lab's firearms examiner testified that the firearm found in Natalie's room was a
match to the bullets recovered from Christopher's body.
Natalie's neighbors, Teresa and Shenade Acosta, testified they saw defendant and Scott at Natalie's house the night of
the robbery. Teresa testified that one of her friends, Ernest, came over from Natalie's house and told Teresa that
Apolinar had just pulled a gun on him. Shenade testified that defendant and Scott came over later to her house looking
for Teresa, but she was not there. Scott and defendant left, but returned fifteen minutes later and Scott told Shenade
that "he would be back because he was going to get money." Defendant then said, "yes, we'll be back." Defendant's
live-in girlfriend, Yuridiana Gomez, testified that defendant left the house the day of the robbery and did not come
home. Yuridiana testified that defendant told her he was sitting outside of Sonic with Mark and Apolinar, when
Apolinar went inside the store because "[t]hey were going to rob the Sonic, get the money and just scare the guy, and
just leave." After a review of the record, we conclude the above non-accomplice evidence "tends to connect" defendant
"with the commission of the crime."
ACCOMPLICE EVIDENCE
The jury charge identified Natalie as an accomplice witness. Natalie lived with her sister, her sister's children, and
Apolinar. On December 16, 2003, Apolinar discussed the robbery with Natalie and asked her if she could get him a
gun. Later that night, Mark, Scott, Jason and defendant showed up at Natalie's home to visit Apolinar. Again, Apolinar
asked Natalie if she could find him a gun. Natalie called one of her friends, Joseph, who arrived at Natalie's house.
Joseph soon left Natalie's home, but returned with a gun. Joseph gave Natalie the gun, who gave it to Apolinar, and
then Joseph left. Apolinar approached Natalie, Jason, Scott, Mark, and defendant and told them he had the gun. Then,
file:///C|/Users/Peter/Desktop/opinions/PDFs1/19300.html[8/20/2013 7:48:39 PM]

all six individuals talked about the plan and Apolinar told everyone what to do during the robbery. Apolinar told
defendant he would be a look-out and then the two men argued about how much money each would get from the
robbery.
Next, all six individuals got into a black car and drove to Sonic. Mark was driving the car and dropped off defendant
and Scott "one on each side of the Sonic to look out." Natalie, Apolinar, and Jason went into Sonic. Apolinar fired the
gun and told everyone to get down on the floor. Natalie testified she heard Apolinar say, "don't run or I'll shoot," and
then heard two shots. She looked back and saw Apolinar holding a gun and standing over a man. Natalie took the
money and the three individuals left the store. Defendant and the others got back in the car. While in the car, Apolinar
said, "I shot [him] for sleeping with my girl." All six individuals left the scene in the same car and went to Apolinar's
mother's house. Natalie, Apolinar, and Jason went inside to divide the money, while defendant, Mark, and Scott stayed
outside. Soon, everyone left the house and went to a hotel room that Apolinar had rented. At the hotel, Apolinar, Scott,
and defendant were talking about robbing someone else to get more money. Natalie decided to go home, so Apolinar
gave Natalie the gun and she left with Jason and Mark. Natalie put the gun in her room and went to sleep. The police
arrived that morning and arrested Natalie. Although Natalie testified that Apolinar shot Christopher "for sleeping with
[his] girl," after a review of the record, we conclude the evidence is legally and factually sufficient to support the jury's
verdict that Apolinar shot the victim in furtherance of a robbery.
REQUEST FOR REFORMATION OF JUDGMENT
Defendant claims the trial court erred in entering a deadly weapon finding in the judgment because the evidence is
undisputed that Apolinar Soto fired the gun that killed the victim. Defendant asks that the judgment be reformed to
delete the affirmative finding entered by the trial court.
When the jury is the trier of fact, an affirmative finding on use of a deadly weapon may be entered by the trial court in
the following three instances: 1) the indictment alleges use of a deadly weapon and the verdict reads "guilty as charged
in the indictment"; 2) the weapon is deadly per se and the verdict reads "guilty as charged in the indictment"; or 3) the
jury affirmatively answers a special issue on the use of a deadly weapon. Polk v. State, 693 S.W.2d 391, 394 (Tex.
Crim. App. 1985). Here, the indictment alleges defendant used a deadly weapon and the jury found defendant "guilty
of Capital Murder as charged in the indictment." However, when a jury is instructed on the law of parties, the jury
must expressly state that defendant either used or exhibited a deadly weapon or knew that one would be used or
exhibited during the commission of the offense. Tex. Code Crim. Proc. Ann. art. 42.12; see Taylor v. State, 7 S.W.3d
732, 740-41 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd). In this case, the jury was not given a special issue on
the use of a deadly weapon and the jury's finding was not specific as to defendant's use or knowledge concerning the
deadly weapon. Therefore, we sustain defendant's fourth issue and modify the judgment to delete the affirmative
finding that defendant used or exhibited a deadly weapon. Tex. R. App. P. 43.2(b). CONCLUSION We affirm the trial
court's judgment as modified.
Sandee Bryan Marion, Justice
DO NOT PUBLISH
file:///C|/Users/Peter/Desktop/opinions/PDFs1/19300.html[8/20/2013 7:48:39 PM]

Download 19300.pdf