MEMORANDUM OPINION

No. 04-09-00211-CR

Maurice A. MOSES,

Appellant

v.

The STATE of Texas,

Appellee

From the 144th Judicial District Court, Bexar County, Texas

Trial Court No. 2007CR8924

Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: April 13, 2011

AFFIRMED

Maurice Moses was convicted of capital murder and sentenced to life imprisonment. He 

brings three issues on appeal: (1) the trial court erred in denying his motion to suppress because 

his statement was not voluntary; (2) the trial court erred because the jury charge permitted his 

conviction on proof different from, and less than, that required to prove the allegation in the 

indictment; and (3) the trial court’s charge denied him the right to a unanimous jury verdict. We 

affirm.
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BACKGROUND

On the day of the murder, July 11, 2007, the victim, nineteen-year-old Mariano Sanchez, 

was home with his uncle Marcelino Cervantez, who was also nineteen years old; his uncle’s 

girlfriend Frankie Perez; and her mother Diane Perez. Frankie Perez testified at trial that at about 

6:30 a.m. on the day of the murder, while everyone in the house was asleep, she heard banging 

on the front door and answered the door. A man came running into the house with a gun and 

went straight to Mariano Sanchez’s bedroom. A second man, Moses, whom Frankie Perez knew 

from previous drug deals, then entered the house and pointed a gun in her face. Moses told her 

and her mother to get on the ground. Frankie Perez heard “fighting” and “struggling” coming 

from Sanchez’s bedroom. Then, she heard one gunshot, more struggling, and then another 

gunshot. Frankie Perez then saw Moses go into Sanchez’s bedroom and heard him say, “You 

weren’t supposed to kill him; you were just supposed to hurt him.” While Moses was still inside 

Sanchez’s bedroom, Frankie Perez heard a third gunshot. Frankie Perez heard more struggling 

and then heard Mariano Sanchez say, “You have the drugs. You have what you want, leave.” 

Frankie Perez heard more struggling and heard Mariano Sanchez say, “No, no, no.” She then 

heard a fourth gunshot. After that fourth gunshot, Moses and the man, whom Moses called 

“Primo,” ran outside. Then, Primo came back and ran into Sanchez’s bedroom. Frankie Perez 

heard Primo say, “Lay your ass right there.” She then heard one final gunshot. After the men left, 

Frankie Perez went into her boyfriend’s bedroom and saw that her boyfriend, Cervantez, had 

managed to sleep through the shooting. Once she was able to wake him up, Cervantez went to 

Sanchez’s bedroom and saw that Sanchez was dead. Sanchez had been shot three times.

At trial, Moses testified that he did not go into the house voluntarily, but was forced to by 

Primo and “Burger” because he had “snitched” on Primo. Moses claimed that he did not 
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voluntarily point a gun at Frankie Perez or her mother and that he did not voluntarily tell them to 

lay on the ground. Moses also claimed to not have been responsible for any of the gunshots that 

hit Sanchez. 

After hearing all the evidence presented at trial, the jury found Moses guilty of capital 

murder.

MOTION TO SUPPRESS

In his first issue, Moses argues that the trial court erred in denying his motion to suppress 

his statements made to police because his statements were involuntary and the product of illegal 

coercion by the police. The Texas Court of Criminal Appeals has repeatedly held that “the trial 

court is the sole and exclusive trier of fact and judge of the credibility of the witnesses and the 

evidence presented at a hearing on a motion to suppress, particularly where the motion is based 

on the voluntariness of a confession.” Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App. 

2007) (citations omitted). Because of “this vital role, great deference is accorded to the trial 

court’s decision to admit or exclude such evidence, which will be overturned on appeal only 

where a flagrant abuse of discretion is shown.” Id.

In determining whether to admit or exclude such evidence, a trial court considers whether 

the defendant voluntarily made such statements “without compulsion or persuasion.” TEX. CODE 

CRIM. PROC. ANN. art. 38.21 (West 2005). And, in considering whether a confession was 

voluntarily made, a trial court should examine the totality of the circumstances. Arizona v. 

Fulminante, 499 U.S. 279, 285–86 (1991); Delao, 235 S.W.3d at 239. 

At the suppression hearing, Moses and Sergeant Jimmy Willingham testified. Further, a 

DVD of the interrogation was admitted in evidence. Moses testified that at the time of the 

interrogation, he was self-medicating by taking Xanax, which caused him “to be sleepy and not 
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keep track of what’s going on.” He also admitted that Xanax might exaggerate his perception of 

what was happening to him. According to Moses, Sergeant Willingham and another officer told 

him in a “threatening manner” that he needed to work with them. Moses testified that when he 

was taken to the bathroom, an officer kept saying that he did not believe Moses. According to 

Moses, in the restroom, the officer “clamped” the handcuffs “real tight” on him and told him that 

he needed to tell the truth. Moses claims that as a result, he felt intimidated. Moses also testified 

that the officer said that if Moses told the truth, he would be arrested for his traffic tickets and 

would then be allowed to go home. 

Sergeant Willingham, on the other hand, testified that Moses was never threatened or 

coerced. According to Sergeant Willingham, Moses was arrested on active municipal court 

warrants. He was taken to the police station and placed in an interview room. Before the 

interview began, Sergeant Willingham asked Moses if he need to use the restroom or something 

to drink. When Moses said that he did need to use the restroom, Sergeant Willingham and 

Officer Dennis Colburn walked Moses to the restroom, and Officer Colburn went into the 

restroom with Moses. According to Sergeant Willingham, during Moses’s trip to the restroom, 

neither he nor Officer Colburn threatened, harmed, or pressured Moses. When Moses had 

finished using the restroom, they escorted him back to the interview room, and Sergeant 

Willingham advised him of his rights. Sergeant Willingham testified that during the 

interrogation, he did not threaten, injure, or coerce Moses in any way. Further, Sergeant 

Willingham testified that Moses did not appear to be under the influence of drugs or alcohol. 

And, as noted, a DVD of this interrogation was admitted in evidence. 

At the conclusion of the hearing, the trial court determined that the DVD contained two 

different types of statements: (1) those Moses made during his interrogation with police; and (2) 
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those made while speaking to third parties on a telephone in the interview room. The trial court 

determined that the latter statements, which were made while Moses was alone in the interview 

room, were not made as a result of custodial interrogation. The trial court further found that the 

statements made as a result of police interrogation were voluntarily made. 

We first note that as the sole trier of fact during the suppression hearing, the trial court 

was free to disbelieve Moses’s testimony of the events that occurred in the restroom. See Wilson 

v. State, 311 S.W.3d 452, 458 (Tex. Crim. App. 2010) (“As the sole trier of fact during a 

suppression hearing, the trial court may believe or disbelieve all or any part of a witness’s 

testimony.”); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (explaining that as sole 

trier of fact, the trial court may disbelieve all or any part of a witness’s testimony, even if that 

testimony is not controverted). And, the trial court was free to believe Sergeant Willingham’s 

testimony that Moses was not threatened or coerced in any manner. See Wilson, 311 S.W.3d at 

458; Ross, 32 S.W.3d at 855. Finally, the trial court had the DVD that recorded the interrogation. 

Given this record, we find no abuse of discretion by the trial court in denying Moses’s motion to 

suppress. See Delao, 235 S.W.3d at 238. 

JURY CHARGE

With respect to the jury charge, Moses first argues that the charge was “fatally and 

fundamentally flawed because it permitted his conviction on proof different from, and less than, 

that required to prove the allegation in the indictment.” Here, the indictment charged Moses with 

having committed capital murder:

on or about the 11th day of July, 2007, MAURICE MOSES, 

hereinafter referred to as defendant, did intentionally cause the 

death of an individual, namely, Mariano Sanchez, hereinafter 

referred to as complainant, by SHOOTING THE 

COMPLAINANT WITH A DEADLY WEAPON, NAMELY, A 

FIREARM, and the defendant was in the course of committing or 
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attempting to commit the offense of ROBBERY of Mariano 

Sanchez.

And, the application paragraphs of the charge stated as follows:

Now, if you find from the evidence beyond a reasonable doubt that 

on or about the 11th day of July, 2007, in Bexar County, Texas, 

“Primo” did intentionally cause the death of an individual, namely: 

Mariano Sanchez, by shooting Mariano Sanchez with a deadly 

weapon, namely: a firearm, and “Primo” was in the course of 

committing or attempting to commit the offense of robbery of 

Mariano Sanchez, and that the defendant, Maurice Moses, acting 

with the intent to promote or assist the commission of the offense 

of capital murder, did solicit, encourage, direct, aid or attempt to 

aid “Primo” in the commission of the offense of capital murder;

Or, if you find from the evidence beyond a reasonable doubt that 

Maurice Moses entered into a conspiracy with “Primo” to commit 

the felony offense of robbery, and that on or about the 11th day of 

July, 2007, in Bexar County, Texas, in an attempt to carry out this 

agreement, “Primo” did intentionally cause the death of an 

individual, namely: Mariano Sanchez, by shooting Mariano 

Sanchez with a deadly weapon, namely: a firearm, and “Primo” 

was in the course of committing or attempting to commit the 

offense of robbery of Mariano Sanchez, and that such offense was 

committed in furtherance of the unlawful purpose to commit 

robbery and was an offense that should have been anticipated as a 

result of the carrying out of the conspiracy to commit robbery; 

Then, you will find the defendant guilty of capital murder as 

charged in the indictment.

Moses argues that because he was not charged with the offense of conspiracy in the indictment, 

the trial court erred by including in the application paragraphs of the jury charge conspiracy 

language pursuant to section 15.02 of the Penal Code. We disagree. The Texas Court of Criminal 

Appeals rejected this argument in Montoya v. State, 810 S.W.2d 160 (Tex. Crim. App. 1989).

Section 7.02 of the Penal Code, titled “Criminal Responsibility for Conduct of Another,” 

provides the following:

(a) A person is criminally responsible for an offense committed by 

the conduct of another if:
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(1) acting with the kind of culpability required for the 

offense, he causes or aids an innocent or nonresponsible 

person to engage in conduct prohibited by the definition 

of the offense;

(2) acting with intent to promote or assist the commission 

of the offense, he solicits, encourages, directs, aids, or 

attempts to aid the other person to commit the offense; 

or

(3) having a legal duty to prevent commission of the 

offense and acting with intent to promote or assist its 

commission, he fails to make a reasonable effort to 

prevent commission of the offense.

(b) 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 (West 2003) (emphasis added). Section 15.02(a) of the Penal 

Code, titled “Criminal Conspiracy,” provides the following:

(a) A person commits criminal conspiracy if, with intent that a 

felony be committed:

(1) he agrees with one or more persons that they or one or 

more of them engage in conduct that would constitute 

the offense; and

(2) he or one or more of them performs an overt act in 

pursuance of the agreement.

Id. § 15.02(a).

In Montoya, 810 S.W.2d at 164, as here, the indictment said nothing about a conspiracy 

and the jury charge tracked the language of section 7.02(b) and contained the definition of 

conspiracy from section 15.02 of the Penal Code. And, as here, the appellant argued that the 

inclusion of the theory of conspiracy in the court’s charge constituted error because the offense 

of conspiracy had not been alleged in the indictment. Id. at 165. In so arguing, the appellant 

emphasized that criminal conspiracy is an offense under section 15.02 of the Penal Code and that 
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because he had no notice that he was being charged with the offense of criminal conspiracy, the 

jury was erroneously instructed on an alternate theory of conviction. Id. The court of criminal 

appeals, however, concluded that the appellant was “mistaken in his argument.” Id.

According to the court, the trial court’s charge did not instruct the jury to consider 

whether the appellant was guilty of the separate offense of criminal conspiracy, but, instead, the 

charge “merely contained an alternative ‘parties’ charge as provided” in section 7.02(b) of the 

Penal Code. Id. The court then explained that “[i]t is well accepted that the law of parties may be 

applied to a case even though no such allegation is contained in the indictment” and that “[t]his 

rule applies not only to the law of parties found in section 7.02(a)(2) but also the law of parties 

found in section 7.02(b).” Id. The court further explained that its “examination of case law shows 

that the theory of criminal responsibility set forth in section 7.02(b) has often been applied in

capital murder cases.” Id. Thus, pursuant to Montoya, although the indictment said nothing about 

a conspiracy, the application paragraph of the jury could properly include a parties charge from 

section 7.02(b) and a definition of criminal conspiracy from section 15.02 of the Penal Code. Id.; 

see also Depue v. State, No. 04-08-00487-CR, 2009 WL 5150069, at *6 (Tex. App.—San 

Antonio 2009, no pet.) (following Montoya and holding that in capital murder case, the 

application paragraph of the charge properly referenced section 7.02(b) and included a definition 

of criminal conspiracy from section 15.02, even though the indictment said nothing about a 

conspiracy).

Again pointing to the conspiracy language contained with the second application 

paragraph, Moses argues that the court’s charge denied him the right to a unanimous verdict 

“because the charge allowed the jury to convict him of capital murder on two separate and 

distinct theories.” We disagree.
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Unanimity is required under the Texas Constitution in felony cases and under the Texas 

Code of Criminal Procedure in all criminal cases. Jefferson v. State, 189 S.W.3d 305, 311 (Tex. 

Crim. App. 2006). Unanimity means that “each and every juror agrees that the defendant 

committed the same, single, specific criminal act.” Ngo v. State, 175 S.W.3d 738, 745 (Tex. 

Crim. App. 2005). In determining unanimity, the question is whether the jury charge submitted 

different offenses or simply alternate methods of committing the same offense. Huffman v. State, 

267 S.W.3d 902, 905 (Tex. Crim. App. 2008). To answer this question, we determine the focus 

or gravamen of the offense. Id. at 907. 

Here, Moses was charged with capital murder. See TEX. PENAL CODE ANN. § 19.03(a)(2) 

(West Supp. 2010). The gravamen or focus of the offense was the murder of Mariano Sanchez 

during the commission of a robbery. See Huffman, 267 S.W.3d at 907; Depue, 2009 WL 

5150069, at *7. The jury charge authorized the jury to find Moses guilty of this single offense as 

a party under either section 7.02(a)(2) or section 7.02(b). See Depue, 2009 WL 5150069, at *7. 

Thus, the jury charge did not submit different offenses, but simply submitted alternate methods 

of committing the same offense. See Huffman, 267 S.W.3d at 905; see also Depue, 2009 WL 

5150069, at *7 (“Thus, the charge permitted the jury to find alternative theories of party liability 

for the commission of the single criminal offense of capital murder.”). Therefore, “[t]he jury 

charge did not authorize or permit the jury to return anything less than a unanimous verdict.” 

Depue, 2009 WL 5150069, at *7.

CONCLUSION

We affirm the judgment of the trial court.

Karen Angelini, Justice

DO NOT PUBLISH