Description: One morning, Officer M. Zamora of the Houston Police Department was
surveilling a Honda parked in front of a house in east Houston. The house was the
residence of Juan Arellano-Velasquez, whom Zamora had been investigating for
suspected drug trafficking. Zamora had received a tip from a confidential informant
that the Honda would soon be leaving town with an undetermined amount of
narcotics. He observed that the Honda had a broken window and then left the scene
in his unmarked vehicle.
When Officer Zamora returned to the residence later in the day, he observed
that the window had been repaired, leading him to suspect some movement was
about to occur. He then observed Arellano exit his house, get into the Honda, and
drive away. He called Officers G. Haselberger and K. Venables to provide rolling
Communicating through a back-channel police radio, the officers followed the
Honda to a shopping center, where they observed Arellano pick up a man, later
identified as Omar Hernandez. The officers continued to follow the Honda as it left
the shopping center and drove to a washateria.
Surveilling the washateria from across the street, Zamora observed the Honda
park next to a Toyota, which was driven by a man later identified as Edgar
Henriquez. He then observed an Infiniti pull up and park beside the Honda. Zamora
continued to watch as Hernandez got out of the Honda, retrieved a backpack from a
passenger in the Infiniti, put the backpack in the backseat of the Toyota, and then
got back into the Honda.
After the exchange, the Honda and Toyota left the washateria and drove “in
tandem” to a convenience store, where the officers stopped and detained Arellano,
Hernandez, and Henriquez. Officer Haselberger asked Henriquez whether there
were drugs in the Toyota, and he responded, “Yes. In the black bag.”
The officers then searched the Toyota, retrieved the backpack from the
backseat, and found six bricks of cocaine inside. Zamora testified that the cocaine
was worth approximately $600,000 and that the amount was consistent with
distribution, not personal use.
The officers also seized multiple cell phones from the three men (two from
Arellano, one from Henriquez, and three from Hernandez). Zamora testified that
finding multiple phones on an individual is consistent with narcotics trafficking, as
it is common for drug dealers to use multiple phones to create a buffer between
dealers, couriers, and customers.
The records of the calls from those phones were retrieved by other officers
pursuant to a search warrant. The records showed that, in the days leading up to the
offense, Arellano and Hernandez exchanged 36 phones calls. Zamora testified that
the high number of calls indicated that they were planning something.
Arellano is indicted, tried, and convicted
Arellano was indicted for possession with intent to a deliver over 400 grams
of cocaine. At trial, Henriquez and Hernandez testified as witnesses for the State.
Henriquez testified that Arellano was the “boss” of the operation and
Hernandez was the “go-between.” According to Henriquez, Arellano told Hernandez
what to do, and Hernandez, in turn, told Henriquez where to go. Henriquez further
testified that, while in the holding cell after the arrest, Arellano offered to pay him
$100,000 if he took the blame, but he refused.
Hernandez’s testimony was more detailed. Hernandez testified that, on the
day of the arrest, Arellano called him in the morning and instructed him on what to
do and that, once they were detained by the police, Arellano told him, “It’s over.”
Hernandez further testified to several instances in the months leading up to
the arrest in which he and Henriquez picked up or delivered narcotics at Arellano’s
behest. Hernandez claimed that he did not want to continue working for Arellano
but felt like he had to in order to pay a debt for a shipment of drugs that had been
stolen. Hernandez testified that he was afraid that if he quit before paying the debt,
Arellano would kill him or his mother. Hernandez testified that Arellano had once
threatened to cut his friend’s head off because Arellano believed his friend had stolen
a shipment of drugs from him.
A jury found Arellano guilty and assessed punishment at 60 years’
confinement and a $250,000 fine. The trial court sentenced Arellano in accordance
with the jury’s verdict. Arellano appeals.
Corroboration of Accomplice-Witness Testimony
In his first issue, Arellano argues that the evidence is insufficient to support
his conviction because the accomplice-witness testimony presented by the State was
not corroborated. The State responds that the accomplice-witness testimony was
corroborated by the officers’ testimony and the cell phones recovered from Arellano,
Hernandez, and Henriquez.
Under the accomplice-witness rule, a defendant cannot be convicted on
accomplice testimony unless the testimony is “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. CRIM. PROC.
CODE art. 38.14.
In determining whether accomplice-witness testimony was sufficiently
corroborated, we view the evidence in the light most favorable to the jury’s verdict.
Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008). “The corroborating
evidence need not be sufficient by itself to establish guilt . . . .” Castillo v. State, 221
S.W.3d 689, 691 (Tex. Crim. App. 2007). Nor must it “directly link” the defendant
to the offense. Id. (quoting McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App.
1997)). “There must simply be some non-accomplice evidence which tends to
connect appellant to the commission of the offense alleged in the indictment.”
Castillo, 221 S.W.3d at 691.
Thus, “circumstances that are apparently insignificant may constitute
sufficient evidence of corroboration.” Malone v. State, 253 S.W.3d 253, 257 (Tex.
Crim. App. 2008). The Court of Criminal Appeals has explained that “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.” Smith
v. State, 332 S.W.3d 425, 443 (Tex. Crim. App. 2011) (quoting Richardson v. State,
879 S.W.2d 874, 880 (Tex. Crim. App. 1993)).
At trial, the State corroborated the accomplice-witness testimony with Officer
Zamora’s testimony. Zamora testified that he observed Arellano leave his residence
in his Honda, pick up Hernandez, drive to a washateria, and park next to the Toyota
driven by Henriquez. He then observed the Infiniti pull up and park next to the
Honda and Hernandez exit the Honda, retrieve a backpack from the Infiniti’s
passenger, and place the backpack in the backseat of the Toyota. Finally, he observed
the Honda and Toyota drive “in tandem” to the convenience store, where the police
stopped, detained, and searched Arellano, Hernandez, and Henriquez, finding six
bricks of cocaine and multiple cell phones. Zamora testified that both the amount of
cocaine and number of cell phones were consistent with narcotics trafficking.
The State further corroborated the accomplice-witness testimony with
evidence retrieved from Hernandez’s cell phone, which showed that Hernandez and
Arellano called each other 36 times the day before the arrest. Zamora testified that
the number of calls between Hernandez and Arellano was “very consistent with
narcotics transactions” and indicated that there was “some sort of coordination or
preparation going on right before the incident occurred.” Hernandez’s cell phone
further showed that, on the day of the arrest, shortly before the exchange at the
washateria, Hernandez texted Arellano, “Ya vamos” (“We are on our way”), and
Arellano responded, “Okay.” Zamora testified that these texts were sent around the
same time he observed Arellano leave his house.
Thus, the corroborating evidence placed Arellano in the company of
Hernandez and Henriquez at the scene of the narcotics exchange. See McDuff v.
State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (“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.”). It showed that the three of them had coordinated
their movements and were working together. See Silva v. State, No. 01-10-00245
CR, 2012 WL 1564541, at *5 (Tex. App.—Houston [1st Dist.] May 3, 2012, pet.
ref’d) (mem. op., not designated for publication) (holding that accomplice testimony
was sufficiently corroborated in possession-with-intent-to-deliver case when officer
observed that defendant and accomplice “appeared to act in tandem” as they arrived
at used car lot, spoke on their cellphones and then with each other, had no contact
with workers on site, left lot together, returned together, and pulled cover from car
in which cocaine was found); Herron v. State, No. 01-04-00640-CR, 2005 WL
1646043, at *4–5 (Tex. App.—Houston [1st Dist.] July 14, 2005, pet. ref’d) (mem.
op., not designated for publication) (holding that accomplice testimony was
sufficiently corroborated in possession-with-intent-to-deliver case when officer
observed defendant follow accomplice vehicle and remain close at hand during drug
transaction). We hold that the State presented evidence that sufficiently corroborated
the accomplice-witness testimony. Therefore, we overrule Arellano’s first issue.
Admission of Extraneous Acts
In his second issue, Arellano contends the trial court abused its discretion by
allowing Hernandez to testify to several prior instances in which he and Henriquez
sold drugs at Arellano’s behest. Arellano contends that the testimony was
inadmissible under Rules 403 and 404(b). The State responds that Arellano failed to
preserve error because he did not make specific objections under Rules 403 and
404(b). We agree.
Before Hernandez testified, the State informed the trial court that it intended
to examine Hernandez about the prior drug dealing, and the trial court ruled that the
testimony was admissible. Arellano then stated that he “would object” without
specifying a ground for his objection or obtaining a ruling from the trial court. See
Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008) (“To preserve error for
appellate review, a party must make a timely and specific objection or motion at
trial, and there must be an adverse ruling by the trial court.”). Arellano did file a
pretrial motion in limine that requested that the trial court exclude “all extraneous
crime or misconduct evidence” under Rules 403 and 404(b). But motions in limine
do not preserve error. See id.2
Because Arellano failed to make a timely and specific objection that the
testimony was inadmissible under Rules 403 and 404(b), he did not preserve error
on this issue for appeal. See id. Therefore, we overrule Arellano’s second issue.
2 See also Evans v. State, No. 01-15-00593-CR, 2016 WL 2743555, at *3 (Tex. App.—Houston [1st Dist.] May 10, 2016, no pet.) (mem. op., not designated for publication) (holding that defendant who “objected that the offense was unfairly prejudicial in his motion in limine” but did not “renew his objection under Rule 403 at the time the offense was admitted at trial” failed to preserve error on appeal).
Ineffective Assistance of Counsel
In his third, fourth, fifth, and sixth issues, Arellano argues that he received
ineffective assistance of counsel because trial counsel failed to make certain
evidentiary objections. Specifically, Arellano contends that his trial counsel was
ineffective in failing to object to evidence that Arellano had previously sold or
directed the sale of cocaine, heroin, methamphetamine, and marijuana and that he
once threatened to murder Hernandez’s friend for allegedly stealing a shipment of
To prevail on a claim for ineffective assistance of counsel, a defendant must
satisfy the two-prong test set forth by the United States Supreme Court in Strickland
v. Washington, 466 U.S. 668, 687–90 (1984). Under the first prong, “the defendant
must show deficient performance—that the attorney’s error was so serious that
counsel was not functioning as the counsel guaranteed the defendant by the Sixth
Amendment.” Weaver v. Massachusetts, 137 S. Ct. 1899, 1910 (2017) (quoting
Strickland, 466 U.S. at 687) (internal quotations omitted). Under the second prong,
“the defendant must show that the attorney’s error prejudiced the defense.” Id.
In reviewing a claim for ineffective assistance of counsel, we are “highly
deferential” to trial counsel. Taylor v. State, 461 S.W.3d 223, 228 (Tex. App.—
Houston [1st Dist.] 2015, pet. ref’d). We indulge a “strong presumption” that trial
counsel’s performance “fell within the wide range of reasonable professional
assistance.” Ex parte LaHood, 401 S.W.3d 45, 50 (Tex. Crim. App. 2013). To prove
that counsel’s performance was deficient, “the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Blackwell v. State, 193 S.W.3d 1, 21 (Tex. App.—
Houston [1st Dist.] 2006, pet. ref’d).
“Any allegation of ineffectiveness must be firmly founded in the record,
which must demonstrate affirmatively the alleged ineffectiveness.” Id. And “trial
counsel should ordinarily be afforded an opportunity to explain his actions before
being denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.
App. 2003). Thus, if the record does not contain affirmative evidence of counsel’s
reasoning or strategy, we normally presume that counsel’s performance was not
deficient. Blackwell, 193 S.W.3d at 21. “In rare cases, however, the record can be
sufficient to prove that counsel’s performance was deficient, despite the absence of
affirmative evidence of counsel’s reasoning or strategy.” Id.
The record is silent as to why trial counsel failed to object to the extraneous
evidence. We must therefore presume that trial counsel pursued a sound trial
strategy, such as concluding that the evidence was likely admissible and that
objecting to it might actually harm Arellano’s defense by forcing the State to develop
the evidence even further.
Because the record is silent as to why trial counsel did not make the
evidentiary objections, we hold that Arellano has failed to rebut the “strong
presumption” that counsel’s performance “fell within the wide range of reasonable
professional assistance.” LaHood, 401 S.W.3d at 50. Accordingly, we overrule
Arellano’s third, fourth, fifth, and sixth issues.