COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-17-00028-CR

EUNICE CRISTINA RODRIGUEZ APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

TRIAL COURT NO. 1447239R

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MEMORANDUM OPINION1

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Appellant Eunice Cristina Rodriguez appeals from her felony-murder 

conviction for which she received a life sentence. In five points, she challenges 

the denial of her pretrial motion to suppress, the jury charge, and the sufficiency 

of the evidence to support her conviction. Because sufficient corroborating 

evidence supported Rodriguez’s conviction, rendering the absence of a charge 

 

1See Tex. R. App. P. 47.4.
2

instruction on corroborative testimony not egregiously harmful, and because 

Rodriguez did not preserve her appellate suppression argument in the trial court, 

we affirm the trial court’s judgment. 

I. BACKGROUND

A. THE MURDER

Tommy Brown, who worked as a night cleaner for a Fort Worth janitorialservices company, was in a relationship with Connie Moreno.2

 Moreno was a 

“very petite,” Hispanic woman whom Brown regularly introduced as his wife 

although they apparently were not married. In 2003 or 2004, Brown also became 

involved with Rodriguez, who was taller than Moreno, heavier set, and Hispanic.3 

Brown referred to Rodriguez as his girlfriend to some, but he told his sister

Andrea Brown that he was only “trying to help [Rodriguez] out.” Brown told 

Andrea that Rodriguez was from El Paso. 

In early 2013, Rodriguez met Brayden Ellis on a bus trip to her hometown 

of El Paso and they became romantically involved. Ellis found out about 

Rodriguez’s relationship with Brown in March or April of 2013. Ellis eventually 

moved to El Paso to be with Rodriguez but they returned to the Fort Worth area 

in July 2013. Rodriguez and Ellis then planned to move to Georgia to live with 

 

2

In the record, her last name is also spelled “Marino.” 

3Brown shared with a co-worker that his personal life was “a mess.” 
3

his mother, and Rodriguez told Ellis that she wanted to talk to Brown before they 

moved. 

On Thursday, September 5, 2013, Ellis dropped off Rodriguez near 

Brown’s home. Rodriguez later called Ellis to tell him that Brown had slapped 

her and that she was pregnant with Ellis’s child. Ellis became angry, threatening 

to drive there and “beat [Brown] up,” and Rodriguez told Ellis that she would 

“take [Brown’s] things.” 

According to Ellis, he drove his Dodge Intrepid to Brown’s neighborhood

late that night and waited until Rodriguez texted him to come to Brown’s home. 

When Rodriguez let Ellis into Brown’s home, Brown was gone. Ellis hid in a back 

bedroom for “a real long time.” During this time, Brown returned and he and 

Rodriguez left together. When they returned, Ellis grabbed a toilet-tank lid from a 

nearby bathroom and hit Brown in the head, breaking the lid and deeply cutting 

Ellis’s right hand. Ellis began punching Brown with his fists until Brown fell to the 

floor. Rodriguez then handed Ellis a pot and said, “Here, use this.” 

Ellis hit Brown in the head three times with the pot and then tied Brown’s 

hands behind his back with one of Brown’s shoelaces. Rodriguez told Ellis to put 

a bag over Brown’s eyes, which he did. Rodriguez taped Ellis’s injured hand and 

“cleaned up what she could clean up” with bleach. Rodriguez wore “see-through 

medical gloves” while cleaning up. 

Rodriguez told Ellis that she was going to take Brown’s truck and television 

but that she needed to get some other “things” as well. Ellis left with the 
4

television, believing that Brown was still alive. Ellis put the television in Brown’s 

truck and then sat in his Intrepid. After about five minutes, Ellis drove away, and 

Rodriguez pulled up behind him in Brown’s truck. At a nearby convenience 

store, Ellis and Rodriguez moved the television and “a few bags” to the Intrepid 

and drove away together in the Intrepid, leaving the truck with the keys in it. Ellis 

discovered that Rodriguez also had taken Brown’s cell phone and wallet. The 

pair then drove to Ellis’s hotel, where he threw away his bloody clothes, and then 

drove to a hospital to get his hand treated. 

B. THE INVESTIGATION

Two days later, Andrea went to Brown’s home to check on him after a 

neighbor reported that she had not seen Brown for a few days, which was 

unusual. Indeed, Andrea had not seen Brown since September 2 and had 

unsuccessfully tried to contact him by text the morning of September 7: “call me 

ASAP.” She found Brown lying face down on the floor of the hallway bathroom 

with his hands tied behind his back with a black shoelace. It appeared he had 

been doused with bleach because his clothes were discolored. There was a 

plastic bag over his head secured by duct tape wrapped around his lower face 

and neck eleven times. There was a second plastic bag underneath this bag. 

Brown had several head injuries caused by blunt-force trauma, injuries to his 

neck muscles and hyoid bone, and nine rib fractures. There were bloody shoe 

prints in the kitchen “with distinctly different tread patterns,” and the hallway walls 

were spattered in blood. 
5

Andrea called the police. Officers arrived and noted that Brown’s truck and 

television were missing and that a toilet tank was missing its lid. A responding 

officer recalled having Brown’s truck towed on the morning of September 6 from 

a nearby convenience store where it had been found abandoned with the keys in 

it. When officers checked the truck, they found a plastic bag containing pieces of 

a toilet-tank lid, a shoe, and a belt. The items tested positive for blood.

Rodriguez, Ellis, and Brown could not be excluded as contributors to the mixed 

DNA profile found on the belt. 

While the lead detective, Thomas O’Brien, was driving Andrea to the police 

station to interview her, she received a text message from Brown’s phone, 

apparently in response to her earlier text: “Im driving to El Paso what u want?” 

O’Brien instructed Andrea how to respond: “ok call me when u get back. Have a 

safe trip.” Andrea gave O’Brien Rodriguez’s name and mentioned that she was 

from El Paso. O’Brien determined that Rodriguez had “an extensive criminal 

history,” including a 2003 conviction for aggravated robbery. 

O’Brien spoke with two of Brown’s neighbors, Billy Henderson and Willie 

Wingfield. Wingfield stated that on the night of September 5, he saw Brown 

leave and a “female who is taller and heavier set [than Moreno] walk a stranger 

into the house.” He was sure that the woman was not Moreno. He described the 

stranger as a tall, black man with braided hair. Wingfield did not recognize the 

stranger but knew he did not “belong there.” When Brown returned, Wingfield 

saw Brown be forcibly “yanked” inside the house. That was the last time 
6

Wingfield saw Brown. The next morning, Wingfield noted that Brown was not 

smoking on his front porch as was his habit. 

Henderson also last saw Brown on the night of September 5. He saw 

Brown and his tall, Hispanic girlfriend go into Brown’s home. After Brown left, 

Henderson saw a tall, black man with glasses and braids go into the home. 

Wingfield was unable to pick Rodriguez’s photo out of a photo array as the 

person he saw with Brown that night.

4

 Similarly, another neighbor of Brown’s, 

Keith Moultry, did not choose Rodriguez’s photo when asked to identify the 

woman he saw Brown with on September 5. Both Wingfield and Moultry chose 

the same “filler” photo. 

O’Brien reviewed security video for the business Brown cleaned the night 

of September 5 and saw Brown and Rodriguez arrive together at 10:10 p.m. and 

leave at 10:56 p.m. Brown was wearing the same shirt in the video that he was 

found murdered in. Because Brown’s wallet was not found at the scene, O’Brien 

began tracing Brown’s debit card through bank records and security video from 

the businesses where the card was used. O’Brien discovered that Rodriguez 

and Ellis began using Brown’s debit card in the early morning hours of 

September 6 through September 7, moving east from Fort Worth into Mississippi,

until Brown’s money was gone. 

 

4The photograph O’Brien used of Rodriguez was from 2003. 
7

O’Brien searched police reports for Brown’s address and found that Brown 

had accused Rodriguez of theft earlier that year, in July 2013. Brown had 

reported that he believed Rodriguez had taken his wallet and that when he called 

Rodriguez to confront her, Rodriguez threatened to send “her male friend” to 

Brown’s house to “kick his ass.” Brown heard a male laughing in the background 

during the call. 

On September 8, O’Brien swore to these facts in an affidavit, stating that 

he had “good reason to believe” that Rodriguez committed the capital murder of 

Brown and seeking an arrest warrant. A magistrate signed a warrant authorizing 

Rodriguez’s arrest that same day. See Tex. Code Crim. Proc. Ann. art. 15.03 

(West 2015). 

Three days after Andrea found Brown’s body—September 10—O’Brien 

interviewed Deborah Grimes, the bookkeeper at the janitorial-services company 

Brown worked for. Grimes had been receiving and sending texts to Brown’s cellphone number after his murder. She had texted Brown on September 7 after he 

did not show up to a September 6 cleaning assignment: “Call me.” She received 

a reply text from Brown’s number, “Im driving to El Paso had a emergency.” She 

responded, “Your buildings are covered for the weekend. Call me as soon as 

you get back.” Brown’s number replied, “Thank you. So much.” Grimes then 

asked where Brown’s vacuum cleaner was but received no immediate response. 

Two days later on September 9, the texter using Brown’s number told 

Grimes he would “be back no time soon,” explained that he had lost his wallet 
8

and was “low in cash,” asked to borrow money, and requested that she send “the 

money to my causin [sic] his name is Braylon Ellis.” On September 10, Grimes 

texted Brown to tell him that she was worried about him and asked if he still 

wanted his paycheck to be sent to Braylon Ellis. Brown’s number responded, 

explaining that he could only text and not call from the phone because it had 

been dropped and asking that the money be sent to his cousin by money gram. 

The police then tracked the location of Brown’s phone to “just outside of 

Atlanta, Georgia.” Rodriguez and Ellis were arrested in Georgia on September 

10 under two Texas arrest warrants.5 Rodriguez had dyed her brown hair

blonde. O’Brien flew to Georgia and obtained a search warrant for Ellis’s 

stepfather’s house, which is where Rodriguez and Ellis had been staying, and for 

Ellis’s Intrepid. See id. art. 18.01 (West Supp. 2017). O’Brien’s supporting 

affidavit was nearly identical to the affidavit he submitted to support his request 

for an arrest warrant. In the bedroom Rodriguez and Ellis had shared in the 

home, officers found Brown’s driver’s license in a wallet in a bag, Brown’s cell 

phone “hidden . . . kind of at the back of the dresser,”6 and clothes matching the 

clothes seen on Rodriguez and Ellis in the security videos as they were using 

Brown’s debit card. In Ellis’s Intrepid, officers found Brown’s debit card, an 

 

5At the time of his arrest, Ellis was wearing glasses and had his hair in 

braids. 

6O’Brien was able to find Brown’s phone by calling Brown’s number and 

hearing it ring from the back of the dresser. 
9

envelope with Rodriguez’s name on it, and “additional paperwork” with Brown’s 

name. The only fingerprint found on Brown’s phone matched Rodriguez’s prints. 

Officers also found Ellis’s discharge instructions from the Dallas hospital Ellis 

went to for treatment for a “Dog bite, hand” on September 6 at 4:14 a.m. 

C. PRETRIAL AND TRIAL

Rodriguez was indicted with the capital murder of Brown. See Tex. Penal 

Code Ann. § 19.03(a)(2) (West Supp. 2017). While she was in jail awaiting trial, 

Rodriguez discussed details of her involvement in Brown’s murder with Mecca 

Fisher, a fellow inmate: 

[Rodriguez] said that her and [Ellis] were going to rob [Brown]. She 

said that she left the house while he was supposed to do it. And 

when she got back [Brown] was still alive.[7] She said that [Ellis] was 

really upset and crying and she said that he was a stupid [expletive]. 

He was weak and he couldn’t finish it. So she said she [finished it]. 

Rodriguez also told Fisher that they tied Brown up, beat him, and took his credit 

cards and truck before leaving for Georgia. Rodriguez stated that she planned 

the entire thing. To Fisher, Rodriguez seemed to be bragging about her 

involvement and was confident that no physical evidence—fingerprints, 

footprints, or blood—would be found at Brown’s house to connect her to the 

offense. 

Rodriguez filed a motion to suppress all evidence obtained as a result of 

the Texas arrest warrant and the Georgia search warrant, complaining that

 

7Rodriguez knew Brown was alive because he was making “[m]oaning, 

gurgling sounds.” 
10

O’Brien omitted material facts in his supporting affidavits. Specifically, Rodriguez 

pointed to the fact that O’Brien did not disclose that Wingfield and Moultry failed 

to pick Rodriguez’s photo from the photo array. Rodriguez argued to the trial 

court that these omissions in O’Brien’s affidavits vitiated any probable cause to 

support issuance of the warrants. The trial court denied Rodriguez’s motion:

And the Court is not going to overturn the magistrate[s’] decisions [to 

issue the warrants]. The Court likewise is going to make a finding 

that Officer O’Brien did not act in bad faith when he did the affidavit. 

That even though some things might have been left out, there was 

still adequate probable cause based upon the discussions that he 

had with [Andrea] together with the text messages that [s]he had 

received . . . and also the accusations by Mr. Brown concerning Ms. 

Rodriguez’[s] threatening him and also stating that she would have a 

guy come and do bodily harm to him, . . . but based upon that, the 

Court’s going to deny the motion to suppress. 

D. APPEAL

The jury found Rodriguez guilty of the lesser-included offense of murder

and assessed her punishment at confinement for life.

8

 See id. § 19.02(b) (West 

2011). She filed a motion for new trial, arguing that the verdict was contrary to 

the law and evidence, which was deemed denied. See Tex. R. App. P. 21.3(h), 

21.8(c). Now on appeal, Rodriguez raises five points containing two main 

arguments: (1) the evidence was insufficient and the jury charge was egregiously 

harmful because neither Fisher, a jail informant, nor Ellis, Rodriguez’s 

 

8Her punishment was enhanced after the State notified the court that 

Rodriguez was a repeat offender based on her 2003 aggravated-robbery 

conviction. See Tex. Penal Code Ann. § 12.42(c)(1) (West Supp. 2017); Brooks 

v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997). 
11

accomplice, may be corroborated by the other and (2) any evidence obtained as 

a result of the arrest and search must be suppressed because O’Brien made 

“material and intentional misrepresentations” in his affidavits that attempted to 

establish probable cause. 

II. CORROBORATION

In her first two points, Rodriguez argues that because Fisher and Ellis 

cannot corroborate each other and because the remaining evidence is 

insufficient to support her conviction, it must be reversed. This argument turns 

on whether the testimony of a jail informant may be corroborated by an 

accomplice witness and vice versa. In a related point, she asserts that the jury 

charge was egregiously harmful because it failed to instruct the jury that Fisher 

and Ellis could not corroborate each other. 

A. SUFFICIENCY

The code of criminal procedure prohibits a conviction based solely either 

on an accomplice witness’s testimony or on a jail informant’s testimony unless 

the testimony is “corroborated by other evidence tending to connect the 

defendant with the offense committed.” Tex. Code Crim. Proc. Ann. art. 

38.075(a) (West Supp. 2017), art. 38.14 (West 2005). Corroboration of either

accomplice or informant testimony is not sufficient if such corroborating evidence 

shows nothing more than the commission of the offense. Id. arts. 38.075(b), 

38.14. The court of criminal appeals has held that the testimony of one 

accomplice witness cannot corroborate the testimony of another accomplice. 
12

Chapman v. State, 470 S.W.2d 656, 660 (Tex. Crim. App. 1971). But whether 

accomplice and informant testimonies may corroborate each other appears to be 

an open question. See Lorence v. State, No. 02-15-00398-CR, 2017 WL 

4172077, at *5 (Tex. App.—Fort Worth Sept. 21, 2017, pet. ref’d) (mem. op. on 

reh’g, not designated for publication). Judge Barbara Hervey has noted that the 

plain language of articles 38.075 and 38.14 seem to allow such crosscorroboration, although she acknowledged this result seemed counterintuitive:

The corroboration requirement in both statutes refers to “other 

evidence,” but the statutes do not refer to each other. The “other 

evidence” requirement makes sense when there is testimony at trial 

from only an accomplice or a “jail house” informant, but what if there 

is—as in this case—testimony from an accomplice and a “jail house” 

informant? Can the accomplice’s testimony corroborate the “jail 

house” informant’s testimony and vice versa? The language of the 

statutes indicate that they could, but I am not convinced that is what 

the legislature intended because such an interpretation would seem

to undermine the policy reason for the existence of both statutes. If 

the statutes exist to ensure that a person is not convicted on only 

unreliable testimony, why would it be okay to allow that so long as 

two unreliable witnesses testify instead of only one?

Perhaps the legislature considered this possibility and rejected 

it, although the legislative history does not indicate that is so. It is 

also possible, however, that the legislature did not consider such a 

scenario. Neither the judiciary nor the legislature has the ability to 

foresee every conceivable consequence of a law, and while it is not 

for the judiciary to add or subtract from lawful statutes enacted by 

the legislature, the legislature may want to consider examining the 

interplay between these two statutes to ensure that they operate as 

intended when there is accomplice and “jail house” informant 

testimony in the same case.
13

Mata v. State, 542 S.W.3d 582, 583 (Tex. Crim. App. 2018) (Hervey, J., 

concurring op. to refusal of pet.) (internal citation omitted).

9

 And the intermediate 

appellate courts have reached differing conclusions on the issue. See Lorence, 

2017 WL 4172077, at *5 (discussing split of authority). 

While we recognize that whether Fisher and Ellis could corroborate each 

other is an open question, we need not definitively decide it today. When 

evaluating the sufficiency of corroboration evidence we “eliminate the accomplice 

testimony from consideration and then examine the remaining portions of the 

record to see if there is any evidence that tends to connect the accused with the 

commission of the crime.” Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. 

App. 2001). The corroborating evidence need not prove the accused’s guilt

beyond a reasonable doubt nor does it have to directly link the accused to the 

commission of the offense. Casanova v. State, 383 S.W.3d 530, 538 (Tex. Crim. 

App. 2012); Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008); 

Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999). All that is 

required is that the non-accomplice evidence link the accused in some way to the 

crime, allowing a rational fact-finder to conclude that the non-accomplice

evidence sufficiently tended to connect the accused to the offense. Smith v. 

State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011); Simmons v. State, 

282 S.W.3d 504, 508 (Tex. Crim. App. 2009). Even apparently insignificant 

 

9Three judges joined Judge Hervey’s concurring opinion in Mata—Judges 

Bert Richardson, David Newell, and Scott Walker.
14

incriminating circumstances may afford the requisite corroboration as long as the 

combined weight of these circumstances tends to connect the accused to the 

offense. Cathey, 992 S.W.2d at 462; Trevino v. State, 991 S.W.2d 849, 852 

(Tex. Crim. App. 1999); McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 

1997). This standard is the same for corroboration of informant testimony. 

Lorence, 2017 WL 4172077, at *6.

By eliminating the evidence provided by Fisher and Ellis, we conclude that 

the remaining evidence tended to connect Rodriguez to Brown’s murder such 

that Fisher’s and Ellis’s testimonies were sufficiently, independently corroborated. 

The night of the murder, security video of the business Brown cleaned showed 

Brown and Rodriguez arrive and leave together. Brown’s neighbors saw him at 

his home that night accompanied by a Hispanic woman who was not Moreno,

and also saw the woman allow a man into Brown’s home after Brown left. When 

Brown returned, one neighbor saw that he was forcibly “yanked” into his home. 

After Brown’s truck was found, the belt in the truck tested positive for the 

presence of blood, and neither Ellis nor Rodriguez could be excluded as a 

contributor to the mixed DNA profile. Security video showed Rodriguez and Ellis 

using Brown’s debit card beginning shortly after the murder and continuing until 

Brown’s account was drained, which occurred when Rodriguez and Ellis were in 

Mississippi. While Rodriguez and Ellis were on the move, Andrea received a text 

message from Brown’s phone number, saying he was traveling to El Paso with 

his “girl.” Andrea informed O’Brien that Rodriguez was from El Paso. Grimes 
15

also received text messages from Brown’s phone number in which the sender 

asked Grimes to send money to Ellis. 

When Rodriguez and Ellis were arrested in Georgia at Ellis’s stepfather’s 

house, Rodriguez had dyed her hair blonde and Brown’s wallet, driver’s license, 

and phone were found in the bedroom Rodriguez had been staying in with Ellis. 

Rodriguez and Ellis were located after law enforcement tracked the location of 

Brown’s phone by cell-tower information. Brown’s phone was hidden in the back 

of a dresser, and the only fingerprint found on the phone was Rodriguez’s. 

Clothes matching the clothes Ellis and Rodriguez were seen wearing while using 

Brown’s debit card were found in the bedroom. In Ellis’s Intrepid, the vehicle 

seen in surveillance videos when Brown’s credit card was used, officers found 

Brown’s debit card, an envelope with Rodriguez’s name on it, and “additional 

paperwork” with Brown’s name, including handwritten notations of Brown’s bankaccount information and driver’s license number.

This evidence and the inferences that could be reasonably drawn from it

tended to connect Rodriguez to Brown’s murder and thus were sufficient to 

corroborate Fisher’s and Ellis’s testimonies even if they could not corroborate 

each other. See, e.g., Castillo v. State, 221 S.W.3d 689, 691–93 (Tex. Crim. 

App. 2007); McDuff, 939 S.W.2d at 612–13; Spiers v. State, 543 S.W.3d 890, 

892–96 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d); Campos v. State, 

473 S.W.3d 907, 915–16 (Tex. App.—Amarillo 2015, no pet.); Hernandez v. 

State, 327 S.W.3d 200, 207–08 (Tex. App.—San Antonio 2010, pet. ref’d); 
16

Peden v. State, 917 S.W.2d 941, 945–47 (Tex. App.—Fort Worth 1996, pet. 

ref’d). We overrule Rodriguez’s first two points. 

B. JURY CHARGE

Rodriguez asserts in her fifth point that she was egregiously harmed by the 

absence of a jury instruction that explained Fisher’s and Ellis’s testimonies could 

not be cross-corroborated. Indeed, because Rodriguez did not object to the jury 

charge on this basis, she must show egregious harm arising from the absence of 

an instruction under either article 38.075 or article 38.14. See Nava v. State, 

415 S.W.3d 289, 298 (Tex. Crim. App. 2013). Even assuming error in the 

absence of such an instruction, Rodriguez cannot show such harm because the 

jury heard sufficient corroborating evidence apart from the evidence provided by 

Fisher and Ellis and because that corroborating evidence was not “so 

unconvincing in fact as to render the State’s overall case for conviction clearly 

and significantly less persuasive.” Saunders v. State, 817 S.W.2d 688, 692 (Tex. 

Crim. App. 1991); see also Phillips v. State, No. 10-12-00164-CR, 2015 WL 

7443625, at *1–3 (Tex. App.—Waco Nov. 19, 2015, pet. ref’d) (mem. op., not 

designated for publication); Brooks v. State, 357 S.W.3d 777, 781–82 (Tex. 

App.—Houston [14th Dist.] 2011, pet. ref’d). In short, the absence of such 

instruction, even if error, was harmless. See Washington v. State, 449 S.W.3d 

555, 571–72 (Tex. App.—Houston [14th Dist.] 2014, no pet.). We overrule point 

five.
17

III. MOTION TO SUPPRESS

In her third and fourth points, Rodriguez argues that the trial court erred by 

denying her motion to suppress her arrest warrant and the search warrant for 

Ellis’s stepfather’s home in Georgia because O’Brien made material 

misrepresentations of fact in his supporting affidavits. See Tex. Code Crim. 

Proc. Ann. art. 15.05 (West 2015), art. 18.01(b). She argues that O’Brien 

“misstated” in the affidavits that Wingfield and Henderson identified Rodriguez as 

the person who admitted another man into Brown’s home while Brown was gone, 

falsely implying that Rodriguez “had walked the murderer into Tommy Brown’s 

home.”10 In reviewing the trial court’s ruling on Rodriguez’s motion to suppress, 

we are limited by the four corners of O’Brien’s affidavits, giving almost total 

deference to the historical facts found by the trial court and reviewing de novo the 

trial court’s application of the law. See State v. McLain, 337 S.W.3d 268, 271 

(Tex. Crim. App. 2011).

O’Brien testified at the hearing on Rodriguez’s motion to suppress that he 

included all facts he believed were important to procure the warrants. Regarding 

Wingfield and Henderson, O’Brien identically stated in both affidavits that they 

saw a Hispanic woman allow an unknown man into Brown’s house the night of

September 5:

 

10As the State points out, the record does not reflect that Henderson was 

asked to view a photo array in an attempt to identify Rodriguez. Only Wingfield 

and Moultry viewed a photo array and both chose the same “filler” photo. 
18

I spoke with Tommy Brown’s neighbor, Willy Wingfield, who said that 

on Thursday evening at approximately 2130 hrs–2200 hrs he 

observed a heavy set Hispanic female, that has hung out with 

Tommy Brown before, and an unknown male, walk into Tommy 

Brown’s house when Tommy wasn’t there. Willy Wingfield said it 

look weird because the lights were off when they went inside. Willy 

Wingfield said that a few minutes later he saw Tommy pull up in his 

truck and when Tommy got to the front door, he observed someone 

pull Tommy inside the house. Willy said that the lights went on for a 

second and then immediately back off. Willy Wingfield said that he 

has not seen Tommy Brown since that happened and noticed that 

the next morning at approximately 0630 hrs, Tommy’s truck was 

gone. Willy Wingfield said that he has only seen two different 

Hispanic females at Tommy’s house and he knows that one of them

is Conception “Connie” Moreno and the other one is the girl who

walked into Tommy’s house with the unknown male, but he doesn’t 

know her name. Willy stated that he is positive the Hispanic female 

who appeared to ambush Tommy with an unknown male was not 

Conception Moreno.

. . . I spoke with Tommy Brown’s other neighbor, Billy 

Henderson, who said that on Thursday evening he observed a tall 

black male with braids, walk into Tommy Browns house with Tommy 

Browns Hispanic girlfriend, while Tommy Brown was gone. Billy 

Henderson said that he observed Tommy Brown drive up after that 

and go inside and never saw anyone come back out.

In the trial court, Rodriguez argued that O’Brien made a material omission 

in the affidavits because he did not reveal that Wingfield and Moultry picked a 

filler photo from the array and not Rodriguez’s photo. She did not argue that 

O’Brien made material misrepresentations in the affidavits. To show error in the 

trial court’s denial of her motion to suppress, Rodriguez must have raised in the 

trial court the same legal theory supporting suppression that she raises on 

appeal. See Tex. R. App. P. 33.1(a)(1); Skinner v. State, No. 01-14-00748-CR, 

2016 WL 2953954, at *4 (Tex. App.—Houston [1st Dist.] May 19, 2016, no pet.) 
19

(mem. op., not designated for publication); Crouse v. State, 441 S.W.3d 508, 

516–17 (Tex. App.—Dallas 2014, no pet.); Wright v. State, 401 S.W.3d 813, 

821–22 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). Rodriguez’s trial 

material-omission theory does not comport with her appellate materialmisstatement theory; thus, she has failed to preserve this argument for our 

review. See Skinner, 2016 WL 2953954, at *5–6. We overrule points three and 

four on this basis.

But even if preserved, Rodriguez’s arguments are without merit. First, at 

no point did the affidavits misstate that Wingfield and Henderson positively 

identified Rodriguez as the woman they saw. See Franks v. Delaware, 438 U.S. 

154, 171–72 (1978) (discussing requirements to attack probable-cause affidavit 

supporting warrant, including “deliberate falsity or reckless disregard”). O’Brien 

included the facts that Wingfield only saw a large, Hispanic woman who was not 

Moreno and that Henderson only saw Brown’s “Hispanic girlfriend.” To render a 

warrant void, misstatements in a supporting affidavit must be material and made 

knowingly and intentionally or with reckless disregard. See id. at 155–56. 

O’Brien’s recounting of what Wingfield and Henderson saw was not an 

intentional or reckless misstatement. Rodriguez seems to recognize as much by 

arguing that the affidavits created a mere “implication” that Rodriguez was the 

woman Henderson and Wingfield saw. To be sure, an implication does not 

satisfy Rodriguez’s burden to establish by a preponderance of the evidence that 

O’Brien made a material and false statement with the requisite mens rea in his 
20

probable-cause affidavits. See Cates v. State, 120 S.W.3d 352, 355 (Tex. Crim. 

App. 2003).

Second, the absence of the fact that Wingfield did not pick Rodriguez’s 

photo from the array does not vitiate probable cause based on the presence of 

other affidavit facts establishing probable cause.11 See Franks, 438 U.S. at 155–

56. O’Brien set out the facts he uncovered in his investigation, which we have 

previously recounted and all of which supported probable cause. In other words, 

even if O’Brien had included Wingfield’s inability to identify Rodriguez from the 

photo array, probable cause was still found in the four corners of O’Brien’s 

affidavits. See Massey v. State, 933 S.W.2d 141, 145–47 (Tex. Crim. App. 

1996); Rios v. State, 376 S.W.3d 238, 241–44 (Tex. App.—Houston [14th Dist.] 

2012, no pet.). For these reasons, the trial court did not err by denying 

Rodriguez’s motion to suppress.

IV. CONCLUSION

Even disregarding Fisher’s and Ellis’s trial testimonies, sufficient 

corroborating evidence and the reasonable inferences arising therefrom tended 

to connect Rodriguez to Brown’s murder. Thus, the evidence was sufficient to 

support her conviction and she was not egregiously harmed by the absence of an 

instruction under either article 38.075 or article 38.14. Finally, the trial court did 

 

11Again, although Rodriguez asserts on appeal that O’Brien’s affidavit 

misstatement was that Henderson and Wingfield identified Rodriguez from the 

photo array, Henderson did not view an array. 
21

not err by denying Rodriguez’s motion to suppress even were we to assume 

Rodriguez raised her appellate suppression argument in the trial court. 

Accordingly, we affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).

/s/ Lee Gabriel

LEE GABRIEL

JUSTICE

PANEL: GABRIEL, PITTMAN, and BIRDWELL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: September 6, 2018