Opinion issued August 2, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00898-CR

———————————

JOSE CRISTINO HERNANDEZ, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Case No. 1050633

MEMORANDUM OPINION

Appellant Jose Cristino Hernandez, Jr. was indicted for the felony offense of 

murder. The trial court found him guilty and assessed punishment at 40 years’ 

confinement. Hernandez appeals, contending he was convicted upon 
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uncorroborated accomplice testimony and, therefore, the evidence is insufficient to 

support the judgment. We affirm. 

Background

Non-accomplice testimony

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 nonaccomplice testimony insufficiently connects Hernandez to the offense. Even 

assuming, contrary to the trial court’s finding, that Garcia is an accomplice 
8

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 gangrelated 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 accomplicewitness 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 
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opposed to an appellate court who relies on the cold record”).

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.

Conclusion

We affirm the trial court’s judgment.

Rebeca Huddle

Justice

Panel consists of Chief Justice Radack, Justice Bland, and Justice Huddle.

Do not publish.