Date: 12-20-2016

Case Style:

Case Number: 01-15-00783-CR

Judge: Evelyn Keyes

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

Plaintiff's Attorney:

Alan Keith Curry
Devon Anderson
Daniel McCrory

Defendant's Attorney:

Juan Manuel Contreras

Description: In the fall of 2013, Eric Nieto and appellant, who was twenty-four, had been
friends for approximately two years. Nieto and appellant knew each other’s families,
and appellant’s girlfriend would occasionally babysit Nieto’s two small children.
Nieto, his common-law wife Cynthia Salguero, their children, and Nieto’s brother
in-law David Arriola lived in the Greenridge townhomes in north Houston.
Appellant and his girlfriend had visited Nieto’s family at this address.
Around late August or early September 2013, Nieto and appellant’s friendship
soured after appellant allegedly stole Nieto’s 9mm rifle from his bedroom. Nieto

1 See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2016) (providing that person commits capital murder if person intentionally commits murder in course of committing or attempting to commit burglary or arson).


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usually kept this rifle on top of the dresser in his bedroom, and only appellant knew
of this hiding place. The gun went missing on the same day that appellant’s
girlfriend was alone in Nieto’s home babysitting Nieto’s children. Nieto confronted
appellant about this theft in a phone conversation, and the men agreed to have a one
on-one fight at appellant’s house. When Nieto arrived at appellant’s house, a group
of people was present outside, and Nieto drove home instead of stopping at
appellant’s house. About half an hour later, appellant called Nieto and they decided
to fight one-on-one at Nieto’s house. When Nieto came outside his house, he saw
appellant and three carloads of people, some of whom had guns. Salguero called 9
1-1, but appellant left before the police arrived.
In response to this incident, Nieto and Salguero decided to move to a new
house, which they did that same week. Nieto informed very few people of his new
address, and he did not inform appellant. A security guard from a private security
company, Seal Security, patrolled the townhome complex pursuant to a contract that
Seal had with the complex’s homeowner’s association. Nieto informed the regular
security guard, Officer Jackson, of the incident with appellant and told him that Nieto
and his family were moving.
Approximately six weeks later, around midnight on November 9, 2013,
appellant called his friend Ruben Pineda, who was fifteen years old at the time, and
the two of them made plans to meet up roughly halfway between their respective


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homes. Appellant did not immediately recognize Pineda when he approached, and
appellant pulled out a gun and pointed it at Pineda. Pineda identified himself, and
appellant lowered the gun. Pineda testified that he had seen appellant with this gun
on a “daily basis,” and he stated that the gun was a .357 caliber. Pineda also stated
that appellant was slurring his words and that he appeared to be intoxicated on
Xanax.
Appellant and Pineda visited a convenience store and then they decided to go
to a local bar called Los Cabos. Salguero, Nieto’s common-law wife, worked at this
bar, and when appellant and Pineda arrived, they saw both Salguero and Nieto.
Pineda and Nieto greeted each other in a friendly manner, but appellant and Nieto
did not greet each other at all. Shortly after Pineda and appellant arrived, Nieto went
to the restroom. Pineda and appellant began playing a game of pool, but appellant
almost immediately abandoned the game in favor of also going to the restroom.
Nieto and appellant had a “verbal confrontation” in the restroom that escalated into
a physical fight. Pineda witnessed a portion of this fight, as did Salguero and the
owner of Los Cabos. The owner broke up the fight and told appellant and Pineda to
leave the bar. As the owner escorted appellant and Pineda out, Salguero saw
appellant make a hand gesture in Nieto’s direction that imitated the shooting of a
gun. Salguero had seen appellant in possession of a handgun on a previous occasion.


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After being kicked out of Los Cabos, appellant decided to vandalize Nieto’s
home by throwing a rock through a window, and he and Pineda began walking to
the Greenridge townhomes because they believed Nieto still lived there. When they
arrived at Nieto’s old unit, they looked through the windows of the home, and they
were surprised to discover that it was empty and that no one was living there.
Appellant went inside the townhome and Pineda stayed outside. Pineda then heard
several thumps and a sound of breaking glass, and when he looked inside the
window, he saw a fire.
After the fire started, Pineda saw the flashing lights of a Seal Security car
through the window. He shouted a warning to appellant, and the two of them began
quickly walking through the townhome complex. As appellant and Pineda were
walking away, Rafael Almanza, the Seal Security guard temporarily assigned to the
Greenridge townhomes on this date and the complainant in this case, appeared
behind them and yelled at them to stop. Instead of stopping, appellant and Pineda
began to run. Pineda testified that appellant turned and fired at least four shots in
Almanza’s direction. After the shooting stopped, Pineda ducked behind a parked
car and noticed that his hand was “red and wet,” and he realized that he had been
shot in the arm. Pineda looked back towards Almanza and saw him lying face-up
and unmoving on the ground with a bullet wound in his head.


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When Pineda stepped out from behind the parked car, he did not see appellant
anywhere. Pineda headed towards appellant’s house and met up with appellant
along the way. Appellant’s mother and brother were also present at the house, and
Pineda testified that they “seemed to already know” what had happened that night.
He stated that he and appellant freely discussed what had happened in the presence
of appellant’s mother and brother.2 While at appellant’s house, both appellant and
Pineda changed clothes. Appellant changed into a shirt that read “snitches get
stitches.” Pineda testified that, to him, appellant’s shirt meant that “[i]f [Pineda] said
anything that happened that night, [he] was either going to get killed or brutally
beat.” Pineda also testified that appellant told him that appellant was “going to get
caught” because he was the only one in the neighborhood who usually got into
arguments with the Seal Security guard who regularly patrolled the Greenridge
townhomes.
Two days later, Pineda went to school and ultimately confided in one of his
teachers about what had happened with appellant and his own injury from the
incident. Pineda was arrested later that day, and he spoke with officers from the
Homicide Division of the Houston Police Department. The State charged Pineda

2 Appellant’s brother, Ricardo Jimenez, denied that appellant spoke about the shooting, instead stating that Pineda did most of the talking. He testified that he was not sure what had happened, but he could tell that Pineda had been shot in the arm. He also agreed that appellant owned a .357 caliber handgun.


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with the misdemeanor offense of criminal mischief as a result of his conduct in
connection with this incident.
David Arriola, who lived with Nieto and Salguero, testified that on the night
of the shooting, while he was working as a security guard at a nearby apartment
complex, he heard gunshots.3 Based on the number of shots he heard, he estimated
that the shooter used nearly two clips’ worth of bullets. Arriola got off work at 3:00
a.m., approximately two hours after he heard the gunshots. He followed the sound
of sirens to the house where he had lived with Nieto and Salguero, and he saw
firefighters hosing down the unit. Arriola spoke with a reporter while standing
outside at the scene, and during the course of the conversation he asked the reporter
if he knew whether a 9mm or a .357 had been used. He indicated that he might know
who was involved. The reporter directed Arriola to HPD Sergeant M. Holbrook.
Arriola informed Sergeant Holbrook that he knew that appellant carried a .357, and
he took Holbrook to appellant’s address.4

3 Arriola also testified that appellant had stolen Nieto’s 9mm gun, that Nieto and appellant’s friendship had soured as a result of this, that appellant had threatened Nieto, Salguero, and their children, that they all moved from the Greenridge townhomes due to these threats, that Nieto made a quick decision to move and not tell anyone their new address, and that they did not want appellant to know their new address.

4 Sergeant Holbrook did not find a .357 handgun when he searched appellant’s residence, but he did find four unfired .357 cartridges.


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Almanza died as a result of his injuries. The autopsy revealed that Almanza
had sustained six penetrating gunshot wounds, including wounds to his head, face,
neck, shoulder, chest, and back, and a graze wound to his hand. Eight .357 caliber
cartridge casings were recovered from the scene, all fired from the same weapon.
B. Procedural Background
The State charged appellant with capital murder. Specifically, the State
charged appellant with intentionally causing the death of Almanza while in the
course of committing and attempting to commit either burglary or arson.
At trial, before Nieto, Salguero, Arriola, and Pineda testified before the jury,
they all testified outside the presence of the jury concerning several extraneous bad
acts by appellant. Defense counsel repeatedly objected to evidence that appellant
had stolen Nieto’s gun, that appellant had threatened Nieto and his family, that
Salguero had seen appellant with a gun, that appellant was known to carry a .357,
that appellant had been warned to stay off the Greenridge townhomes property, that
appellant and Nieto had gotten into a fight at Los Cabos, that Salguero saw appellant
make a threatening hand gesture to Nieto while leaving Los Cabos, that appellant
pointed a gun at Pineda on the night of the incident, that appellant was the only
person known to get into arguments with Seal Security officers, that appellant put
on a shirt after the incident that stated “snitches get stitches,” and that appellant had
possibly taken Xanax on the night of the incident. Defense counsel objected to all


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of this testimony as irrelevant, as inadmissible evidence of extraneous bad acts, and
on the ground that the prejudicial effect of the testimony substantially outweighed
its probative value. The trial court overruled these objections. The trial court gave
oral limiting instructions and included the following limiting instruction in the
charge:
You are further instructed that if there is any evidence before you in this case regarding the defendant’s committing an alleged offense or offenses other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any, and even then you may only consider the same in determining the motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.

At the charge conference, defense counsel requested that the trial court
instruct the jury that Pineda was an accomplice as a matter of law. The State
responded that Pineda had not been charged as either a party or a co-conspirator to
capital murder and that Pineda did not have the requisite mental state for capital
murder. The State argued that the proposed charge, which instructed the jury to
determine as a fact question whether Pineda was an accomplice, was correct. The
trial court denied appellant’s request. The charge included instructions about
accomplices, law of parties, conspiracy, and the corroboration of accomplice
testimony. The charge then stated:


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[I]f you believe from the evidence beyond a reasonable doubt that an offense was committed and you further believe from the evidence that the witness, Ruben Pineda, was an accomplice, or you have a reasonable doubt whether he was or not, as that term is defined in the foregoing instructions, then you cannot convict the defendant upon the testimony of Ruben Pineda unless you further believe that there is other evidence in the case, outside of the testimony of Ruben Pineda tending to connect the defendant with the offense charged in the indictment, and then from all the evidence you must believe beyond a reasonable doubt that the defendant is guilty.

The jury convicted appellant of the offense of capital murder. Because the
State did not seek the death penalty, the trial court automatically assessed appellant’s
punishment at confinement for life. This appeal followed.
Sufficiency of Evidence
In his second issue, appellant contends that the State failed to present
sufficient evidence that he intentionally committed murder.5
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact finder
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); Adames v.

5 In his second issue, appellant argues that the evidence is both legally and factually insufficient. It is well established that the Court of Criminal Appeals has abolished factual-sufficiency review of convictions and, thus, the only standard that is used in evaluating the sufficiency of the evidence is the Jackson v. Virginia standard. See Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011).


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State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard
is only standard to use when determining sufficiency of evidence). The jurors are
the exclusive judges of the facts and the weight to be given to the testimony. Bartlett
v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). The jury, as the sole judge
of credibility, may accept one version of the facts and reject another, and it may
reject any part of a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614
(Tex. Crim. App. 1986); see also Henderson v. State, 29 S.W.3d 616, 623 (Tex.
App.—Houston [1st Dist.] 2000, pet. ref’d) (stating that jury can choose to
disbelieve witness even when witness’s testimony is uncontradicted).
We may not re-evaluate the weight and credibility of the evidence or substitute
our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007). We afford almost complete deference to the jury’s
credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim.
App. 2008). We resolve any inconsistencies in the evidence in favor of the verdict.
Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record supports
conflicting inferences, we presume that the factfinder resolved the conflicts in favor
of the prosecution and therefore defer to that determination.”). Circumstantial
evidence is as probative as direct evidence in establishing guilt, and circumstantial
evidence alone can be sufficient to establish guilt. Sorrells v. State, 343 S.W.3d 152,


12
155 (Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at 778). “Each fact need
not point directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to support the
conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
B. Capital Murder
To establish that appellant committed the offense of capital murder, the State
had to prove that appellant intentionally caused the death of Rafael Almanza by
shooting him with a deadly weapon while in the course of committing or attempting
to commit the offense of either burglary or arson. See TEX. PENAL CODE ANN.
§ 19.03(a)(2) (West Supp. 2016). A person acts intentionally, or with intent, “with
respect to the nature of his conduct or to a result of his conduct when it is his
conscious objective or desire to engage in the conduct or cause the result.” See id.
§ 6.03(a) (West 2011).
Intent is most often proved through circumstantial evidence, and a jury may
infer intent from “any facts that tend to prove its existence, such as the acts, words,
and conduct of the defendant.” Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.—
Houston [1st Dist.] 2009, pet. ref’d). A jury may infer intent to kill from the use of
a deadly weapon, unless it would not be reasonable to infer that death or serious
bodily injury could result from the use of the weapon. Id.; Dominguez v. State, 125
S.W.3d 755, 761–62 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (stating that


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jury was entitled to infer intent to kill from defendant’s use of shotgun, which is “a
deadly weapon per se”). A firearm is a deadly weapon per se. Dukes v. State, 486
S.W.3d 170, 177 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (citing TEX. PENAL
CODE ANN. § 1.07(a)(17)(A) (defining “deadly weapon” as including firearms)).
When a defendant fires a deadly weapon at close range and death results, the law
presumes an intent to kill. Sholars, 312 S.W.3d at 703; Childs v. State, 21 S.W.3d
631, 635 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).
The State presented evidence that appellant and Pineda began quickly walking
through the Greenridge townhomes complex when they saw Almanza, a private
security guard, appear at the burning townhome unit. Almanza yelled at them to
stop, but, instead of stopping, they began running away. During the chase, appellant
turned and started shooting in Almanza’s direction. Eight .357 cartridge casings,
matching the caliber of gun appellant was known to carry, were recovered from the
scene. Almanza sustained six penetrating gunshot wounds and one graze wound,
including wounds to his head, neck, and chest; and he died as a result of his injuries.
Pineda, who was in between appellant and Almanza, estimated that he was
approximately ten feet away from Almanza when he was shot.
A jury may infer intent from the conduct of the defendant. See Sholars, 312
S.W.3d at 703. After setting fire to a townhome unit, appellant pulled out a firearm
and began shooting at the security guard pursuing him as he ran from the scene. A


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firearm is a deadly weapon per se. Dukes, 486 S.W.3d at 177. And a jury may infer
intent to kill from the use of a deadly weapon. Sholars, 312 S.W.3d at 703.
Moreover, when a defendant fires a deadly weapon at close range and death results,
as in this case, the law presumes an intent to kill. Id.; see also Medina v. State, 7
S.W.3d 633, 637 (Tex. Crim. App. 1999) (“Opening fire with an automatic rifle, at
close range, on a group of people supports the conclusion that appellant acted with
the specific intent to kill.”). Based on the record, the jury in this case reasonably
could have inferred that appellant had the intent to kill when he turned around and
shot at Almanza, who was pursuing him as he fled from setting a fire in a vacant
townhome.
Appellant argues that the State failed to prove specific intent to kill because
“[t]here was no more intent on the part of Appellant to shoot the decedent than there
would have been to injure Ruben Pineda, his friend and partner in the activities of
the evening in question.” He argues that the “unintentional shooting” of Pineda
demonstrates his lack of intent to kill. Even assuming appellant unintentionally and
accidentally shot Pineda, that does not negate his intent to kill Almanza. As
appellant and Pineda fled from the burning townhome with Almanza in pursuit,
Pineda was in between appellant and Almanza. Appellant turned around and fired
his weapon several times in Almanza’s direction. Officers recovered from the scene
eight spent cartridge casings matching the caliber of gun that appellant was known


15
to carry and that Pineda had seen earlier that evening. Almanza sustained a total of
seven gunshot wounds, including fatal wounds to his head, neck, and chest. During
the shooting, one bullet also struck Pineda in the arm. The jury reasonably could
have inferred that Pineda sustained an accidental injury because he happened to be
located in between appellant and Almanza when appellant intentionally shot at
Almanza.
We conclude that, viewing the evidence in the light most favorable to the
verdict, the State presented sufficient evidence to support appellant’s conviction.
We overrule appellant’s second issue.
Admission of Extraneous Bad Acts
In his first issue, appellant contends that the trial court erred in admitting
evidence of several extraneous offenses and bad acts because these offenses
constituted improper character evidence under Rule 404(b), and the prejudicial
effect of these offenses substantially outweighed their probative value in violation
of Rule 403.
We review a trial court’s ruling on the admissibility of extraneous-offense
evidence for an abuse of discretion. Wilson v. State, 473 S.W.3d 889, 899 (Tex.
App.—Houston [1st Dist.] 2016, pet. ref’d) (citing De La Paz v. State, 279 S.W.3d
336, 343–44 (Tex. Crim. App. 2009)). We will not reverse a trial court’s ruling on
an evidentiary matter unless the decision was “outside the zone of reasonable


16
disagreement.” Id. at 899–900 (citing Winegarner v. State, 235 S.W.3d 787, 790
(Tex. Crim. App. 2007)). We will not disturb the trial court’s ruling if it can be
justified on any theory of law applicable to the ruling. Id. at 900.
Rule 404(b) prohibits the introduction of extraneous offense evidence to prove
a person’s character or to prove that on a particular occasion the person acted in
conformity with that character. TEX. R. EVID. 404(b)(1); Devoe v. State, 354 S.W.3d
457, 469 (Tex. Crim. App. 2011); Wilson, 473 S.W.3d at 900. Extraneous offense
evidence may, however, be admissible if it has relevance apart from character
conformity. Devoe, 354 S.W.3d at 469. Such evidence may be admissible to prove,
for example, motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. TEX. R. EVID. 404(b)(2); Devoe, 354 S.W.3d
at 469. “Evidence of another crime, wrong, or act also may be admissible as same
transaction contextual evidence where ‘several crimes are intermixed, or blended
with one another, or connected so that they form an indivisible criminal transaction,
and full proof by testimony, . . . , of any one of them cannot be given without
showing the others.’” Devoe, 354 S.W.3d at 469 (quoting Wyatt v. State, 23 S.W.3d
18, 25 (Tex. Crim. App. 2000)). The jury is entitled to know “all relevant
surrounding facts and circumstances of the charged offense.” Id. However, same
transaction contextual evidence is admissible “only when the offense would make
little or no sense without also bringing in that evidence, and it is admissible ‘only to


17
the extent that it is necessary to the jury’s understanding of the offense.’” Id.
(quoting Wyatt, 23 S.W.3d at 25).
The proponent of extraneous offense evidence must be able to explain to the
trial court “the logical and legal rationales that support [the evidence’s] admission
on a basis other than ‘bad character’ or propensity purpose.” De La Paz, 279 S.W.3d
at 343. Whether an extraneous offense has relevance apart from character
conformity is a question for the trial court and thus is reviewed for abuse of
discretion. Devoe, 354 S.W.3d at 469 (quoting Moses, 105 S.W.3d at 627). “A trial
court’s 404(b) ruling admitting evidence is generally within [the zone of reasonable
disagreement] if there is evidence supporting that an extraneous transaction is
relevant to a material, non-propensity issue.” Id. (citing Powell v. State, 63 S.W.3d
435, 438 (Tex. Crim. App. 2001)).
Rule 403 provides that a trial court may exclude otherwise relevant evidence
if the probative value of that evidence is substantially outweighed by a danger of
unfair prejudice, confusion of the issues, the misleading of the jury, undue delay, or
the needless presentation of cumulative evidence. TEX. R. EVID. 403. The Court of
Criminal Appeals has held that a trial court, when conducting a Rule 403 analysis,
must balance:
(1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest [a] decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main


18
issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). A trial
court’s decision not to exclude evidence, based on a finding that the danger of unfair
prejudice does not weigh the evidence’s probative value, is entitled to deference.
See Wilson, 473 S.W.3d at 900 (quoting Moses v. State, 105 S.W.3d 622, 627 (Tex.
Crim. App. 2003)).
On appeal, appellant complains about the admission of several extraneous bad
acts: testimony that appellant was known to carry a .357, that appellant had
threatened Nieto and his family, that appellant had stolen Nieto’s gun, that appellant
had been warned to stay off the Greenridge townhomes property, that appellant and
Nieto had gotten into a fight at Los Cabos on the night of the incident, that appellant
had made a threatening hand gesture imitating shooting a gun at Nieto when he left
Los Cabos, that appellant had pointed a gun at Pineda when they first met up on the
night of the incident, that appellant had changed into a shirt stating “snitches get
stitches” after the incident, and that appellant possibly had taken Xanax on the night
of the incident. Appellant argues that the prejudicial effect of this testimony
substantially outweighed its probative value.


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All of the evidence that appellant complains about on appeal provides
necessary context for the jury to understand the circumstances surrounding the
charged offense of capital murder and appellant’s actions on the night of the
shooting. It is, therefore, admissible as same-transaction contextual evidence. See
Devoe, 354 S.W.3d at 469; Wyatt, 23 S.W.3d at 25. Furthermore, several of the
alleged bad acts were admissible for other purposes as well. See TEX. R. EVID.
404(b)(2) (providing that evidence may be admissible to show, among other things,
motive, opportunity, intent, and lack of accident). The evidence of appellant’s
relationship with Nieto—which included allegations of theft, threats, and physical
violence—tended to show appellant’s motive for burglarizing and setting fire to
what appellant believed to be Nieto’s home. See, e.g., Gipson v. State, 82 S.W.3d
715, 723 (Tex. App.—Waco 2002, no pet.) (holding that evidence of prior
altercations and violence between defendant and complainant was admissible to
show motive and intent to commit subsequent acts of violence against complainant).
HPD Crime Scene Unit officers recovered eight spent .357 cartridge casings
from the scene of the shooting. This case thus involves a murder in which the
complainant sustained multiple gunshot wounds and multiple .357 spent cartridge
casings were found at the scene. Although officers never recovered the weapon used
in the shooting, they did recover four unfired .357 casings from the search of
appellant’s house. The testimony concerning appellant’s carrying of a .357 and his


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pointing a .357 at Pineda on the night of the incident was relevant to his identity as
the shooter and his opportunity to commit the offense. See Scott v. State, 165 S.W.3d
27, 52 (Tex. App.—Austin 2005) (holding that evidence that around time of
murders, defendant was in possession of handgun similar to one used in offense was
relevant and admissible), rev’d on other grounds, 227 S.W.3d 670 (Tex. Crim. App.
2007).
After the shooting, appellant changed into a t-shirt that stated “snitches get
stitches.” Pineda testified that his understanding, upon seeing appellant wearing this
t-shirt, was that he would be beaten or killed if he told anyone about the incident.
This evidence is probative of appellant’s “consciousness of guilt,” in that it was a
threat to Pineda to stay quiet about what he had witnessed. A defendant’s conduct
after the commission of an offense which indicates a “consciousness of guilt” is
admissible to prove that he committed the offense and is an exception to Rule
404(b)’s prohibition against the admission of extraneous offenses. See Hedrick v.
State, 473 S.W.3d 824, 830 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Ross
v. State, 154 S.W.3d 804, 812 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).
“[T]hreats made in an effort to suppress or destroy evidence are probative of
consciousness of guilt.” Hedrick, 473 S.W.3d at 830; Keith v. State, 384 S.W.3d
452, 460 (Tex. App.—Eastland 2012, pet. ref’d) (holding that defendant’s statement
to witness “[t]hat if anybody snitched him out or got him in trouble that he would


21
have them bumped off and they would clean up the mess” was admissible under
Rule 404(b) as probative of consciousness of guilt).
We conclude that the trial court did not violate Rule 404(b) by admitting the
complained-of evidence.
Appellant additionally argues that the extraneous bad acts evidence was
“highly prejudicial” and that the evidence improperly influenced the jury. The State,
as the proponent, had great need of this evidence, which provided context for why
appellant was present at the Greenridge townhomes on the night of the incident and
why he decided to vandalize a unit, which escalated to burglary, arson, and,
ultimately, the shooting of a security guard. The evidence concerning appellant’s
relationship with Nieto provided a motive for appellant’s actions, the evidence
concerning appellant’s carrying of a .357 connected him to the spent .357 cartridge
casings found at the scene, and the evidence of appellant’s threatening shirt, seen by
Pineda, the only eyewitness to the shooting, indicated a consciousness of guilt. The
probative force of this evidence was therefore great.
This evidence was not unfairly prejudicial. The trial court gave oral limiting
instructions before Arriola’s testimony concerning appellant carrying a .357 and
before Nieto’s testimony that appellant had previously stolen his gun, and the court
included an identical instruction in the charge. The extraneous bad acts in this case
all related to the context of the charged offense itself, and thus this evidence was


22
unlikely to distract the jury from the issues it had to decide. None of the extraneous
bad acts evidence had the “potential to impress the jury in an irrational way.” See
Martinez v. State, 327 S.W.3d 727, 737 (Tex. Crim. App. 2010) (noting that Rule
403 does not require exclusion of evidence “simply because it creates prejudice”;
instead, “the prejudice must be ‘unfair’”). Additionally, the complained-of evidence
was not cumulative and did not “consume an inordinate amount of time.” See
Gigliobianco, 210 S.W.3d at 641–42.
We conclude that the trial court did not abuse its discretion by finding that the
prejudicial effect of the complained-of evidence did not substantially outweigh its
probative value. We hold that the trial court did not violate Rule 403 by admitting
the complained-of evidence.
We overrule appellant’s first issue.
Accomplice Witness Instruction
In his third issue, appellant contends that the trial court erred by failing to
instruct the jury that Pineda must be considered an accomplice as a matter of law.
Code of Criminal Procedure article 38.14 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.” TEX. CODE CRIM.
PROC. ANN. art. 38.14 (West 2005). “An accomplice is a person who participates in
the offense before, during, or after its commission with the requisite mental state.”


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Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011); Delacerda v. State,
425 S.W.3d 367, 394 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). Presence
at the crime scene does not make a person an accomplice; instead, an accomplice
must have “engaged in an affirmative act that promotes the commission of the
offense that the accused committed.” Smith, 332 S.W.3d at 439. A person is not an
accomplice if he knew about the offense and failed to disclose it or helped the
accused conceal the offense. Id.
A witness may be an accomplice as a matter of law or as a matter of fact, and
“[t]he evidence in each case will dictate whether an accomplice as a matter of law
or fact instruction is required.” Id. If the witness cannot be prosecuted for the same
offense with which the defendant is charged or prosecuted for a lesser-included
offense, the witness is not an accomplice as a matter of law. Delacerda, 425 S.W.3d
at 394; see also Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007)
(stating that instructing jury that witness is accomplice as matter of law is appropriate
“when the witness is charged with the same offense as the defendant or a lesser
included offense or when the evidence clearly shows that the witness could have
been so charged”). “When the evidence clearly shows (i.e., there is no doubt) that a
witness is an accomplice as a matter of law, the trial judge must instruct the jury
accordingly.” Smith, 332 S.W.3d at 439; Delacerda, 425 S.W.3d at 395 (“A trial
court has no duty to instruct the jury that a witness is an accomplice witness as a


24
matter of law ‘unless there exists no doubt that the witness is an accomplice.’”)
(quoting Druery, 225 S.W.3d at 498). “When there is doubt as to whether a witness
is an accomplice (i.e., the evidence is conflicting), then the trial judge may instruct
the jury to determine a witness’s status as a fact issue.” Smith, 332 S.W.3d at 439–
40.
The Court of Criminal Appeals has held that “the conspiracy theory of party
liability applies in the accomplice-witness context” because an accomplice is a
person who may be charged with the same or lesser-included offense as that with
which the defendant is charged and “a person may be charged with an offense as a
principal, a direct party, or as a co-conspirator.” Zamora v. State, 411 S.W.3d 504,
511 (Tex. Crim. App. 2013). Thus, “an accomplice-witness instruction is required
when the evidence raises the question of whether a witness is an accomplice under
a party-conspirator theory.” Id. at 512. Penal Code section 7.02(b) sets out criminal
responsibility as a conspirator and provides, “If, in the attempt to carry out a
conspiracy to commit one felony, another felony is committed by one of the
conspirators, all conspirators are guilty of the felony actually committed, though
having no intent to commit it, 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.” TEX. PENAL CODE ANN. § 7.02(b) (West 2011).


25
We review a trial court’s decision to deny a requested accomplice witness
instruction for an abuse of discretion. Delacerda, 425 S.W.3d at 395 (citing Paredes
v. State, 129 S.W.3d 530, 538 (Tex. Crim. App. 2004), and Nelson v. State, 297
S.W.3d 424, 428–29 (Tex. App.—Amarillo 2009, pet. ref’d)).
Appellant requested that the trial court instruct the jury that Pineda was to be
considered an accomplice as a matter of law. Specifically, appellant argued that
Pineda’s “testimony where he stated he was a lookout during the arson shows he was
a party to the arson and, therefore, he should have anticipated under the conspiracy
statute that death could have occurred in the course of committing an arson.” The
State pointed out that the proposed charge contained an instruction that the jury
determine whether Pineda was an accomplice as a matter of fact and argued that this
instruction was sufficient. The trial court agreed and denied appellant’s request. The
charge included the following instruction:
An accomplice, as the term is here used, means anyone connected with the crime charged, as a party thereto, and includes all persons who are connected with the crime by unlawful act or omission on their part transpiring either before, at the time of, or after the commission of the offense, and whether or not they were present and participated in the commission of the crime. 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. Mere presence alone, however, will not constitute one a party to an offense.
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


26
attempts to aid the other person to commit the offense. The term “conduct” means any act or omission and its accompanying mental state.
If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, 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.
By the term “conspiracy” as used in these instructions, is meant an agreement between two or more persons with intent, that they, or one or more of them, engage in conduct that would constitute the offense. An agreement constituting a conspiracy may be inferred from acts of the parties.
You are instructed that a conviction cannot be had upon the testimony of an accomplice unless the accomplice’s testimony is corroborated by other evidence tending to connect the defendant with the offense charged, 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. 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.
Therefore, if you believe from the evidence beyond a reasonable doubt that an offense was committed and you further believe from the evidence that the witness, Ruben Pineda, was an accomplice, or you have a reasonable doubt whether he was or not, as that term is defined in the foregoing instructions, then you cannot convict the defendant upon the testimony of Ruben Pineda unless you further believe that there is other evidence in the case, outside of the testimony of Ruben Pineda[,] tending to connect the defendant with the offense charged in the indictment, and then from all the evidence you must believe beyond a reasonable doubt that the defendant is guilty.

Pineda testified that appellant usually carried a .357 and that appellant had
that gun with him on the night of the incident, which he knew because appellant


27
pointed the gun at Pineda when they first met up that evening. Pineda was present
at Los Cabos and witnessed at least part of appellant’s fight with Nieto. He testified
that after they were escorted from the bar, appellant came up with a plan to vandalize
Nieto’s home by throwing a rock through a window. When they arrived at the
Greenridge townhomes, however, they discovered, to their surprise, that Nieto’s unit
was vacant. Appellant broke into the unit and started a fire in the bedroom while
Pineda stood outside. Pineda then noticed the flashing lights of Almanza’s security
vehicle through the window and shouted a warning to appellant, who was still inside
the unit. During the ensuing chase, appellant turned around and fired his weapon
several times, hitting Pineda in the arm and killing Almanza.
The evidence only reflects the plan between appellant and Pineda to vandalize
the unit they thought belonged to Nieto by throwing a rock through the window.
Criminal mischief, the offense with which the State ultimately charged Pineda, is a
misdemeanor. Pineda did not testify that they had a plan to break into the unit or to
set the unit on fire. Nor does the evidence show that appellant told Pineda in advance
of his intent to start a fire. Instead, the evidence reflects that appellant made these
decisions on his own without consulting Pineda. However, Pineda did acknowledge
that after appellant had decided to break in and was inside the unit setting a fire, he
shouted a warning to appellant when he saw security lights. Furthermore, although
there is no indication that appellant had communicated an intent to engage in further


28
physical violence after his fight at Los Cabos with Nieto, Pineda did know that
appellant had a firearm in his possession while they were at the townhomes. See
TEX. PENAL CODE ANN. § 7.02(b) (providing that co-conspirator may be criminally
responsible for felony actually committed if “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”).
Based on the evidence presented, which is conflicting, we cannot say that the
evidence “clearly shows,” or that there is “no doubt,” that Pineda was an accomplice
under a law-of-parties theory or a co-conspirator theory. See Smith, 332 S.W.3d at
439; Delacerda, 425 S.W.3d at 395. We therefore hold that the trial court properly
instructed the jury to determine whether Pineda was an accomplice as a matter of
fact. See Smith, 332 S.W.3d at 439–40; Jester v. State, 62 S.W.3d 851, 854 (Tex.
App.—Texarkana 2001, pet. ref’d) (“If evidence presented by the parties is
conflicting, the issue of whether an inculpatory witness is an accomplice is properly
left to the jury as a fact question under instructions defining the term ‘accomplice.’
This is true even if the evidence shows more likely than not that the witness is an
accomplice as a matter of law.”). Thus, the trial court did not err in refusing
appellant’s requested instruction identifying Pineda as an accomplice as a matter of
law.
We overrule appellant’s third issue.

Outcome: