Date: 08-07-2016

Case Style: Jose Cristino Hernandez, Jr. v. The State of Texas

Case Number: 01-14-00898-CR

Judge: Rebeca A. Huddle

Court: In The Court of Appeals For The First District of Texas

Plaintiff's Attorney:

Devon Anderson

Alan Curry

Defendant's Attorney:

Paco Bynum

Description: Myriam Flores testified that she and the complainant, Eric Romero, had
spent the evening watching television, and the two left Romero’s home around
2:00 A.M. to drive Flores home. As the couple drove away, Flores, who was in the
front passenger seat, noticed a group of people standing outside a nearby house.
Flores testified that a few minutes later, while still riding in Romero’s car,
she noticed a car beside the driver’s side of Romero’s car. Flores saw Hernandez
in the front passenger seat of the adjacent car and recognized him as someone she
saw every day before school. Flores next saw a person sitting in the back seat
behind Hernandez with a bandana over his face holding a gun. Within seconds,
Flores heard shots fired and ducked. Romero was shot, swerved off the road and
crashed into a pole. He died at the hospital.
Testimony of alleged accomplice Garcia
Alejandro Garcia, who rode in the car with Hernandez, testified about the
same series of events. Garcia was outside his house when Romero and Flores
drove by. Although he was not a “cliqued”—or official—member himself, he was

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in the company of four members of a gang called La Tercera Crips: Hernandez,
Juan Balderas, Israel Diaz, and a person known as “Taz.”
Garcia testified that, as Romero drove by, Balderas said “[t]here’s a Cholo,”
referring to La Tercera Crips’ rival gang, the Southwest Cholos. Garcia knew that
when a La Tercera Crip saw a Cholo, the Crip would “run [the Cholo] out, beat
him up, or, you know, shoot him.” Though Garcia knew Romero was no longer
associated with the Cholos, he did not tell the others.
Balderas told the group to get in the car, and the group chased Romero.
Diaz drove Balderas’s car, with Hernandez in the front passenger seat, Balderas in
the back passenger seat, and Garcia in the back behind the driver. Taz drove
separately. Garcia testified that he was unarmed, but everyone else in the car had a
gun: Hernandez had a .357 revolver, Balderas a .357 automatic and a “.40,” and
Diaz had an unidentified firearm.
Garcia testified that they pulled up next to Romero’s car, and Hernandez
fired a shot at Romero. Garcia then turned away, but heard multiple shots fired
from the passenger side by both Hernandez, who sat in the front passenger seat,
and Balderas, who sat behind Hernandez. Garcia testified that on the ride back
home, Hernandez said, “[w]e got him, cuz; we got him, cuz,” and Balderas echoed
the sentiment.

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Hernandez’s statement & physical evidence
Hernandez also recounted the events leading to Romero’s murder in a
recorded statement to police that was admitted at trial. According to Hernandez,
he was already in the front passenger seat of Balderas’s car, rolling a marijuana
cigar, when Romero drove by Garcia’s house. Hernandez told police that Balderas
was the only person in the car carrying a weapon—a .357 automatic—and that
Balderas was the only shooter.
The State also introduced physical evidence related to Romero’s murder.
Roger Milton, the medical examiner, testified that Romero sustained six gunshot
wounds: one in his back, two in his left arm, and three in his left thigh. While
Milton noted multiple gunshot wounds as the cause of death, he opined that the
bullet recovered from Romero’s back would have been fatal in and of itself.
Kim Downs, a firearms expert, also testified at trial. Downs determined that
shell casings recovered from the scene were fired from a .357 Sig Taurus found in
Balderas’s possession at the time of his arrest. However, two bullets recovered
from Romero’s body—including the fatal bullet removed from Romero’s back—
did not match Balderas’s .357 Sig Taurus. In her opinion, the bullet recovered
from Romero’s back was fired from a revolver.
At the close of the State’s evidence, Hernandez urged the trial court to
disregard Garcia’s testimony as the uncorroborated testimony of an accomplice

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witness. The trial court expressly found that Garcia was not an accomplice as a
matter of law or as a matter of fact. The trial court further noted that even if Garcia
were an accomplice, his testimony was sufficiently corroborated through
Hernandez’s and Flores’s statements, as well as forensic evidence. After the trial
court found Hernandez guilty and sentenced him to 40 years’ confinement,
Hernandez appealed.
Discussion
Hernandez contends he was wrongly convicted on the uncorroborated
testimony of an accomplice, Garcia, and that the non-accomplice evidence was
insufficient to support the judgment. We determine, first, whether the testimony of
the supposed accomplice, Garcia, may properly be considered in our sufficiency
review.
A. Applicable Law
Under Texas law, a criminal conviction cannot be based on accomplice
testimony unless also independently corroborated by other evidence tending to
connect the accused to the offense committed. 1 TEX. CODE CRIM. PROC. art. 38.14.
In order to review the sufficiency of corroborating evidence, “we exclude the
accomplice testimony from our consideration and determine whether there is any 1 Article 38.14 of the Code of Criminal Procedure provides: “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. art. 38.14.

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independent evidence that tends to connect the defendant with the commission of
the offense.” Hernandez v. State, 454 S.W.3d 643, 647 (Tex. App.—Houston [1st
Dist.] 2014, pet. ref’d). However, “it is not appropriate for appellate courts to
independently construe the non-accomplice evidence.” Smith v. State, 332 S.W.3d
425, 442 (Tex. Crim. App. 2011). Instead, we view corroborating evidence in the
light most favorable to the verdict. Brown v. State, 270 S.W.3d 564, 567 (Tex.
Crim. App. 2008). “[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, 332 S.W.3d at 442.
Accomplice-witness testimony “need be corroborated only as to facts
‘tending to connect the defendant with the offense committed’ and not as to the
corpus delicti itself.” Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App.
2007) (quoting Gribble v. State, 808 S.W.2d 65, 71 n.13 (Tex. Crim. App. 1990)).
Corroborating evidence need not directly connect the defendant to the crime, and
standing alone, it need not be sufficient to establish guilt. Cathey v. State, 992
S.W.2d 460, 462 (Tex. Crim. App. 1999). The evidence need only link the
accused to the offense in some way such that a rational trier of fact could conclude
that the evidence tended to connect the accused to the offense. Simmons v. State,
282 S.W.3d 504, 508 (Tex. Crim. App. 2009). Corroborating evidence may be
direct or circumstantial, so long as rational jurors could have found that it

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sufficiently tended to connect the accused to the offense. Smith, 332 S.W.3d at
442.
There is no set amount of non-accomplice corroboration evidence required,
and, thus, we must judge each case on its own facts. Malone v. State, 253 S.W.3d
253, 257 (Tex. Crim. App. 2008). Though mere presence at the scene of the crime
is insufficient to corroborate accomplice testimony, Cox v. State, 830 S.W.2d 609,
611 (Tex. Crim. App. 1992), “[e]vidence that the defendant was in the company of
the accomplice at or near the time or place of the offense is proper corroborating
evidence.” McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (first
citing Cockrum v. State, 758 S.W.2d 577, 581 (Tex. Crim. App. 1988), cert.
denied, 489 U.S. 1072, 109 S. Ct. 1358 (1989); then citing Burks v. State, 876
S.W.2d 877, 887–88 (Tex. Crim. App. 1994)). Ultimately, we “consider the
combined force of all the non-accomplice evidence that tends to connect the
accused to the offense.” Aviles-Barroso v. State, 477 S.W.3d 363, 395 (Tex.
App.—Houston [14th Dist.] 2015, pet. ref’d) (quoting Smith, 332 S.W.3d at 442).
B. Garcia’s testimony was sufficiently corroborated to be considered in our legal sufficiency review.
Hernandez contends that Garcia is an accomplice witness and that non
accomplice testimony insufficiently connects Hernandez to the offense. Even
assuming, contrary to the trial court’s finding, that Garcia is an accomplice

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witness, we nevertheless conclude that the non-accomplice testimony was
sufficient to tend to connect Hernandez to Romero’s murder.
Hernandez correctly points out that “mere presence alone of a defendant at
the scene of a crime is insufficient to corroborate accomplice testimony.” Malone,
253 S.W.3d at 257. In support of his argument for reversal, Hernandez relies on
Nolley v. State, 5 S.W.3d 850, 854 (Tex. App.—Houston [14th Dist.] 1999, no
pet.), in which the Fourteenth Court of Appeals held the non-accomplice evidence
did not permit a rational trier of fact to conclude that such evidence tended to
connect the defendant to the offense. But the non-accomplice evidence in Nolley
merely established that (1) the defendant had been in a car with an accomplice
leaving defendant’s house several hours before a murder and (2) the defendant was
walking down a street with an accomplice a day and half after the murder. Nolley,
5 S.W.3d at 854. Nolley does not support Hernandez’s argument, because, here, by
contrast, the non-accomplice evidence does more.
First, unlike in Nolley, the non-accomplice evidence here does not merely
place Hernandez with Garcia hours before and one day after Romero’s shooting.
See Jackson v. State, 487 S.W.3d 648, 657–58 (Tex. App.—Texarkana 2016, no
pet.) (presence in company of accomplice near time offense not alone conclusive
but important factor for consideration). Instead, Hernandez admitted that he rode
in the front passenger seat of the car from which Balderas shot Romero while

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Balderas shot Romero. And Flores likewise testified that Hernandez, whom she
recognized as a person she saw every day before school, rode in the front
passenger seat of the car from which Romero was shot. See McDuff, 939 S.W.2d
at 613 (“Evidence that the defendant was in the company of the accomplice at or
near the time or place of the offense is proper corroborating evidence.”).
Second, unlike in Nolley, there was non-accomplice evidence from which a
rational fact-finder could have inferred that Hernandez had a motive to harm
Romero. Specifically, Hernandez admitted membership in La Tercera Crips, and
he conceded that he and the others chased Romero because they believed him to be
a member of a rival gang. See Vasquez v. State, 67 S.W.3d 229, 239 (Tex. Crim.
App. 2002) (holding that gang-affiliation is relevant to show motive for gang
related crime); Paulus v. State, 633 S.W.2d 827, 846 (Tex. Crim. App. 1981)
(evidence showing motive, alone, is insufficient, but can be considered in
connection with other evidence tending to connect accused with offense).
Finally, the non-accomplice evidence showed that the bullets were fired
from two guns, and thus permitted an inference that someone other than Balderas,
and possibly Hernandez, fired at Romero. See Smith, 332 S.W.3d at 442 (“Motive
and opportunity evidence is insufficient on its own to corroborate accomplice
witness testimony, but both may be considered in connection with other evidence
that tends to connect the accused to the crime.”). Hernandez testified that Balderas

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shot Romero with a .357 automatic, and shells recovered from the crime scene
matched the semiautomatic .357 Sig Taurus in Balderas’s possession at the time of
his arrest. But the physical evidence also showed that one of the gunshots, which
was fatal in and of itself, came from a second gun. The non-accomplice evidence
did not connect any particular person to this second gun and, accordingly, a
rational fact-finder need not have inferred from the non-accomplice evidence that
this second gun was fired by Hernandez as opposed to another person in the car.
But the non-accomplice evidence need not show that Hernandez fired the second
gun because it need not be sufficient to establish guilt. See Cathey, 992 S.W.2d at
462 (corroborating evidence need not directly connect accused to crime, and
standing alone, it need not be sufficient to establish guilt). Rather, it is enough that
the non-accomplice evidence showed that Romero was shot with two guns—one of
which Hernandez had the opportunity to fire. See Simmons, 282 S.W.3d at 508
(“when there are two permissible views of the evidence (one tending to connect the
defendant to the offense and the other not tending to connect the defendant to the
offense), appellate courts should defer to that view of the evidence chosen by the
fact-finder”).
In sum, viewing the non-accomplice corroborating evidence in the light most
favorable to the verdict, as we must, Brown, 270 S.W.3d at 567, we conclude that
the cumulative weight of the evidence placing Hernandez in the car from which the

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shots were fired, and suggesting both motive and opportunity to fire the second
gun, sufficiently tends to connect Hernandez to Romero’s murder. See Cathey,
992 S.W.2d at 462 (“It is not necessary that the corroborating evidence directly
connect the defendant to the crime or that it be sufficient by itself to establish guilt;
it need only tend to connect the defendant to the offense.”); Brown v. State, 672
S.W.2d 487, 489 (Tex. Crim. App. 1984) (“Proof that the accused was at or near
the scene of the crime at or about the time of its commission, when coupled with
other suspicious circumstances, may tend to connect the accused to the crime so as
to furnish sufficient corroboration to support a conviction.”). Accordingly,
Garcia’s testimony may be considered in our legal sufficiency review.
C. Sufficient evidence supports the judgment.
1. Standard of Review
When evaluating the legal sufficiency of the evidence in jury trials and in
bench trials, we view the evidence in the light most favorable to the verdict and
determine whether any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789 (1979); Robinson v. State, 466 S.W.3d 166, 172 (Tex. Crim.
App. 2015); Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). The
standard is the same for both direct and circumstantial evidence cases. King v.
State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).

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On appeal, we do not resolve any conflict of fact, weigh any evidence, or
evaluate the credibility of any witnesses, as this is the function of the trier of fact.
See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We therefore
resolve any inconsistencies in the evidence in favor of the verdict, Matson v. State,
819 S.W.2d 839, 843 (Tex. Crim. App. 1991), and “defer to the [trier of fact’s]
credibility and weight determinations.” Marshall v. State, 210 S.W.3d 618, 625
(Tex. Crim. App. 2006).
2. Applicable Law
In relevant part, a person commits the offense of murder if he “intentionally
or knowingly causes the death of an individual” or “intends to cause serious bodily
injury and commits an act clearly dangerous to human life that causes the death of
an individual.” TEX. PENAL CODE § 19.02(b)(1)–(2). Because murder is a “result
of conduct” offense, “the culpable mental state relates to the result of the conduct,
i.e., the causing of the death.” Schroeder v. State, 123 S.W.3d 398, 400 (Tex.
Crim. App. 2003).
3. Analysis
Considering the evidence in the light most favorable to the verdict, we
conclude that the evidence is legally sufficient to support the judgment. Flores and
Garcia each testified that Hernandez was sitting in the front passenger seat when
the car in which he was riding pulled beside Romero’s car. Hernandez admitted as

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much. Garcia also testified that when Balderas’s car pulled beside Romero’s car,
Hernandez, who was the only person in the car carrying a revolver, leaned out of
the front passenger window and shot at Romero. Downs, the firearm examiner,
testified that the bullet lodged in Romero’s back was fired from a revolver. And
Milton, the medical examiner, testified that the bullet in Romero’s back caused
such damage that it would have been fatal in and of itself. Thus, on the basis of
eyewitness testimony and physical evidence, a rational trier of fact could have
concluded that Hernandez fatally shot Romero with a revolver fired from the front
passenger seat of Balderas’s car.
Hernandez contends that the evidence was insufficient because Garcia is not
credible. He contends Garcia lied to police in an unrelated case and that Garcia
contradicted himself at trial about whether he himself carried a gun. He also
argues that Garcia’s testimony is not credible because it was obtained in exchange
for a reduction in charges against Garcia in a capital murder case. However,
judgments regarding the credibility of witnesses are reserved to the discretion of
the trier of fact and cannot be unsettled on appeal. See Brooks v. State, 323 S.W.3d
893, 899 (Tex. Crim. App. 2010) (stating that appellate courts must defer to
factfinder’s determinations of witnesses’ credibility); Lancon v. State, 253 S.W.3d
699, 705 (Tex. Crim. App. 2008) (stating “[t]he [factfinder] is in the best position
to judge the credibility of a witness because it is present to hear the testimony, as
opposed to an appellate court who relies on the cold record”).

Outcome:

Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Hernandez committed the offense of murder. See Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007) (noting that factfinders are permitted to draw reasonable inferences from circumstantial evidence). Accordingly, we hold the evidence was sufficient to support the judgment and overrule Hernandez’s point of error. We affirm the trial court’s judgment.

Plaintiff's Experts:

Defendant's Experts:

Comments:

Texas Department Of Corrections