NUMBER 13-17-00112-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

EDUARDO LUNA RODRIGUEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 107th District Court

of Cameron County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Hinojosa

Memorandum Opinion by Justice Hinojosa

Appellant Eduardo Luna Rodriguez appeals from a judgment convicting him of one 

count of capital murder by committing murder in the course of retaliation, see TEX. PENAL 

CODE ANN. §§ 19.03(a)(2), 36.06(a)(1) (West, Westlaw through 2017 1st C.S.), a capital 

felony, and one count of engaging in organized criminal activity by possessing with intent 

to distribute a controlled substance in an amount greater than 400 grams, see id. 
2

§ 71.02(a) (West, Westlaw through 2017 1st C.S.), a first-degree felony, and sentencing 

him to imprisonment for life without parole and fifty years, respectively. In six issues, 

which we reorder, Eduardo1 complains that: (1) there is insufficient non-accomplice 

witness testimony to corroborate an accomplice witness’s testimony; (2-3) the trial court 

abused its discretion by overruling his objections and granting the State leave to amend 

its expert disclosure and call a previously undisclosed expert and a lay witness whose 

names were not included in the State’s pretrial witness list; (4-5) the trial court abused its 

discretion by denying his motion for continuance to investigate and determine the need 

to hire defensive experts following the trial court’s overruling of objections lodged in 

relation to Eduardo’s second and third issues; and (6) cumulative error necessitates 

reversal. We affirm.

I. BACKGROUND

According to the indictment, on March 10, 2015, Eduardo, Eduardo’s older brother 

Fernando Luna Rodriguez, Eduardo’s eldest brother Joel Luna, Aaron Rodriguez 

Medellin, and Nestor Manuel Leal, shot Jose Francisco Palacios-Paz dead because the 

group believed that Palacios-Paz was going to inform law enforcement authorities about 

the group’s narcotics smuggling and selling activities. All five individuals were indicted 

on, among other things, one count of capital murder and one count of engaging in 

organized criminal activity by possessing with intent to distribute a controlled substance 

in an amount greater than 400 grams. Before trial, Fernando entered into a plea 

agreement with the State wherein it recommended that Fernando be sentenced to ten 

 1 We will refer to appellant by his first name because he shares a surname with several witnesses.
3

years’ community supervision in exchange for his testimony. 

A. Fernando’s Testimony

At trial, Fernando recounted his and his brothers’ narcotics trafficking activity in the 

years preceding Palacios-Paz’s death. Toward the beginning of this period, Fernando 

lived and worked in Reynosa, a city on the Mexican side of the United States–Mexico 

border. Fernando recalled receiving approximately two hundred and fifty thousand 

dollars in U.S. currency, a kilo of cocaine, and a pistol. The pistol was inscribed with the 

words “Parado,” which according to Fernando means “bird” and is Eduardo’s nickname;

“puma commandate;” and “Cartel de Gulfo.” The pistol’s handgrips depicted Saint Jude. 

Fernando, who worked for a Mexican oil and gas company in Reynosa, stored these items 

in his work locker. 

Over time, Fernando brought the money, cocaine, and pistol into the United States. 

He gave the cocaine to Aaron and Nestor in small batches and admitted to seeing them 

sell it on at least one occasion. Meanwhile, Eduardo acquired Veterans Tire Shop in 

Edinburg, Texas; Palacios-Paz worked at the tire shop. Joel purchased a house in San 

Juan, Texas. In 2015, Eduardo purchased a large safe and placed it in Joel’s house. 

On March 9, 2015, Fernando received a text message from Palacios-Paz’s 

girlfriend indicating that Palacios-Paz was going to inform law enforcement authorities 

about the group’s drug smuggling and selling activities. He forwarded the messages to 

Eduardo. Eduardo texted back to Fernando, “you are going to see, this is it.” Eduardo’s 

text message lead Fernando to believe that Eduardo was going to act against PalaciosPaz. The following day at approximately 7:00 p.m., Palacios-Paz was watching a video 
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on his cellphone in the office at the tire shop as Fernando sat near him. Eduardo then 

entered the office, shot Palacios-Paz in the head with the decorated pistol Fernando had 

brought into the United States, and exited the room. On Eduardo’s orders, Aaron and 

Nestor wrapped Palacios-Paz’s body in a rug and placed it in the bed of Eduardo’s pickup 

truck. After Eduardo drove away from the tire shop, he informed Fernando over a 

cellphone conversation that he intended to dispose of Palacios-Paz’s body at a fishing 

spot on South Padre Island, Texas. 

B. Other Witnesses’ Testimony 

On March 16, 2015, a headless body was reported to be floating in the Laguna 

Madre. Jose Chapa, a special agent with the Department of Homeland Security, was 

asked by law enforcement officials to identify the body by comparing its fingerprints to 

those in an immigration database. Chapa’s comparison identified the body as that of 

Palacios-Paz, a Honduran native who had recently been deported. 

Elizabeth Miller, M.D., a forensic pathologist, performed an autopsy on PalaciosPaz’s decapitated body. Miller observed that, in addition to being decapitated, PalaciosPaz’s body sustained a vertical incision that extended from just above the pelvic bone up 

through the right side of the chest. She concluded that the cause of Palacios-Paz’s 

death was homicidal violence.

Jennifer Smith, a senior forensic analyst, compared DNA samples taken from 

Palacios-Paz’s body with four blood samples collected from the tire shop. Two of the 

blood samples from the tire shop matched Palacios-Paz’s DNA.
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Marla Flores, an intelligence analyst for the Unified Narcotics Intelligence Task 

Force in the Cameron County District Attorney’s Office, extracted text messages, call 

logs, and location information for the cellphones of, among others, Eduardo, Joel, and 

Fernando. Flores was also able to extract text messages that were deleted by the 

cellphone’s user. According to Flores, beginning at 6:24 p.m. on March 9, 2015, 

Fernando sent Eduardo text messages. Flores read those messages, which were in 

Spanish, and, as translated by the court interpreter, the messages stated: “Hello, good 

evening. Now Franky is saying that—and his brother sell drugs and that in any—And 

that at any moment, he is going to put the finger on him.” Using data from cellphone 

tower pings made whenever Eduardo’s cellphone made or received a call, Flores 

determined that, on March 10, 2015, Eduardo’s cellphone was in Edinburg between 11:27 

a.m. and at least 3:38 p.m. At 7:34 p.m., Eduardo’s cellphone made an outgoing call 

that was relayed from a cellphone tower in the McAllen, Texas area. Throughout the 

remainder of the evening, Eduardo’s cellphone continued to receive incoming and make 

outgoing calls along U.S. Highway 83 while traveling eastward toward the Laguna Madre. 

The final calls for Eduardo’s cellphone on March 10, 2015 pinged off of cellphone towers 

along the Laguna Madre during the 11:00 p.m. hour.

Patrick O’Connor, a Texas Ranger, assisted with the investigation into PalaciosPaz’s death. As part of O’Connor’s investigation, he executed a search warrant on Joel’s 

house in San Juan. A safe inside the house was retrieved and opened. It contained, 

among other things, the following: (1) the decorated gun described by Fernando; (2) a 

black case containing a white powdery substance later identified as cocaine with trace 
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amounts of methamphetamine; (3) license plates from the Mexican state of Tamaulipas; 

(4) a ledger containing notes regarding weapons and money; (5) ninety thousand dollars 

in U.S. currency; (6) baggies, measuring spoons, and a digital scale; and (7) a yellow 

envelope. O’Connor opined that foreign license plates may be used to hinder an 

investigation because U.S. law enforcement authorities have no way of ascertaining the 

vehicle’s registration. O’Connor further opined that the baggies, measuring spoons, and 

digital scale were used to repackage and sell drugs based on their proximity to the 

cocaine.

Carlos Vela, a forensic analyst with the Texas Department of Public Safety, 

analyzed the contents of the safe for fingerprints. He determined that the yellow 

envelope inside the safe contained Eduardo’s thumb print.

C. Jury Charge, Verdict, and Judgment

The jury charge instructed the jury that Fernando was an accomplice as a matter 

of law. The jury was also instructed that it could not find Eduardo guilty unless it first 

believed Fernando’s testimony and then found that Fernando’s testimony was 

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. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West, Westlaw through 2017 1st 

C.S.). 

The jury found Eduardo guilty of one count of capital murder by committing murder 

in the course of retaliation, see TEX. PENAL CODE ANN. §§ 19.03(a)(2), 36.06(a)(1), and 

one count of engaging in organized criminal activity by possessing with intent to distribute 
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a controlled substance in an amount greater than 400 grams. See id. § 71.02(a). The 

trial court assessed punishment at imprisonment for life without parole and fifty years for 

each respective count. It signed a judgment in accordance with the jury’s verdict and its 

assessment of punishment. This appeal followed.

II. DISCUSSION

We address Eduardo’s appellate issues in their reordered sequence.

A. Corroboration of Accomplice-Witness Testimony 

By Eduardo’s first issue, he contends that the State failed to present sufficient nonaccomplice corroborating evidence to connect him to the alleged commission of the 

offenses of capital murder by retaliation and engaging in organized criminal activity. 

1. Standard of Review and Applicable Law

Under Texas Code of Criminal Procedure article 38.14, a conviction cannot stand 

on an accomplice witness’s testimony unless the testimony is sufficiently corroborated by 

other, non-accomplice evidence. Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 

2011) (citing TEX. CODE CRIM. PROC. ANN. art. 38.14). A challenge of insufficient 

corroboration is not the same as a challenge of insufficient evidence to support the verdict 

as a whole. Cantelon v. State, 85 S.W.3d 457, 460 (Tex. App.—Austin 2002, no pet.). 

To corroborate accomplice-witness testimony, such as that of Fernando, “[a]ll the law 

requires is that there be some non-accomplice evidence which tends to connect the 

accused to the commission of the offense.” Id. (quoting Hernandez v. State, 939 S.W.2d 

173, 178 (Tex. Crim. App. 1997)); see TEX. CODE CRIM. PROC. ANN. art. 38.14.
8

Corroboration is not sufficient if it merely shows the offense was committed. TEX.

CODE CRIM. PROC. ANN. art. 38.14; Smith, 332 S.W.3d at 439. To determine the 

sufficiency of the corroboration, we eliminate the testimony of the accomplice and 

examine the remaining portions of the record to see if there is any evidence that tends to 

connect the accused to the commission of the offense. Castillo v. State, 221 S.W.3d 

689, 691 (Tex. Crim. App. 2007); Medrano v. State, 421 S.W.3d 869, 883 (Tex. App.—

Dallas 2014, pet. ref’d). We look at the particular facts and circumstances of each case 

and consider the combined force of all the non-accomplice evidence that tends to connect 

the accused to the offense. Smith, 332 S.W.3d at 442; Malone v. State, 253 S.W.3d 

253, 257 (Tex. Crim. App. 2008). There is no set amount of non-accomplice 

corroboration evidence that is required for sufficiency purposes, but rather each case 

must be judged on its own facts. Malone, 253 S.W.3d at 257 (citing Gill v. State, 873 

S.W.2d 45, 48 (Tex. Crim. App. 1994)); see also Cantelon, 85 S.W.3d at 461 (explaining 

that the “tends to connect” standard is not a high standard). Corroborating evidence may 

be direct or circumstantial and need not be sufficient by itself to establish the defendant’s 

guilt. Smith, 332 S.W.3d at 442. “Even ‘apparently insignificant incriminating 

circumstances’ may provide sufficient corroboration.” Medrano, 421 S.W.3d at 883 

(quoting Trevino v. State, 991 S.W.2d 849, 852 (Tex. Crim. App. 1999)). Further, “when 

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.
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Evidence that the defendant was in the company of the accomplice at or near the 

time or place of the crime is not, alone, conclusive corroboration. Hernandez, 939 

S.W.2d at 178. However, 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. Richardson v. State, 879 S.W.2d 874, 880 (Tex. Crim. App. 1993). 

Additionally, 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. Smith, 332 S.W.3d at 442. 

Other suspicious conduct of the defendant includes actions indicating the defendant’s 

consciousness of guilt. See Simmons v. State, 282 S.W.3d 504, 510 (Tex. Crim. App. 

2009).

2. Analysis

As described above, the record contains non-accomplice witness testimony 

relating to Palacio-Paz’s death and the controlled substance found in the safe. Smith 

testified that two of the blood samples from Eduardo’s tire shop matched Palacios-Paz’s 

DNA. Flores recounted text messages that Eduardo’s cellphone received from 

Fernando’s cellphone which provided that Palacio-Paz was prepared to implicate 

Eduardo in narcotics trafficking. Smith, 332 S.W.3d at 442 (providing that motive and 

opportunity evidence may be considered in connection with other evidence that tends to 

connect the accused to the crime). Moreover, using the pings from Eduardo’s cellphone 

for incoming and outgoing phone calls, Flores testified that Eduardo’s cellphone travelled 
10

from Edinburg toward the Laguna Madre on March 10, 2015. Flores’s forensic analysis 

of Eduardo’s cellphone data corroborates Fernando’s testimony regarding Eduardo’s 

involvement in Palacio-Paz’s murder and disposal of the body. As for evidence relating 

to Eduardo’s involvement with possession of a controlled substance, Vela testified that a 

yellow envelope inside the safe contained Eduardo’s thumb print. Lastly, O’Connor 

opined that the baggies, measuring spoons, and a digital scale—located in the safe

Eduardo purchased and which contained the envelope with Eduardo’s thumb print—were 

used to repackage and sell drugs, based on their proximity to the cocaine.

On this record, we conclude there is “some non-accomplice evidence which tends 

to connect the accused to the commission of the offense.” Hernandez, 939 S.W.2d at 

178; see Smith, 332 S.W.3d at 439, 442. Therefore, we conclude the accomplicewitness testimony in question was sufficiently corroborated. See Smith, 332 S.W.3d at 

442.

We overrule Eduardo’s first issue.

B. Smith’s and Chapa’s Testimony

By Eduardo’s second issue, he contends that the trial court abused its discretion 

in granting the State leave to amend its expert designation to include Smith. Eduardo’s 

third issue contends that the trial court abused its discretion by allowing Chapa, whom 

Eduardo contends was a lay witness but concedes may also have been classified as an 

expert, to testify.

1. Standard of Review and Applicable Law

Upon request, the State is required to provide notice of any expert witnesses it 
11

intends to call at trial. See TEX. CODE CRIM. PROC. ANN. art. 39.14(b) (West, Westlaw 

through 2017 1st C.S.).

2 If the trial court allows a witness who was not on the State’s list 

to testify, we review that decision for an abuse of discretion. Martinez v. State, 867 

S.W.2d 30, 39 (Tex. Crim. App. 1993); Hamann v. State, 428 S.W.3d 221, 227 (Tex. 

App.—Houston [1st Dist.] 2014, pet. ref’d); Depena v. State, 148 S.W.3d 461, 465 (Tex. 

App.—Corpus Christi 2004, no pet.). In our review, we consider two factors: (1) 

whether the State’s actions in calling a previously undisclosed witness constituted bad 

faith, and (2) whether the defendant could have reasonably anticipated that the witness 

would testify. Wood v. State, 18 S.W.3d 642, 649 (Tex. Crim. App. 2000) (citing Nobles 

v. State, 843 S.W.2d 503, 514–15 (Tex. Crim. App. 1992)); Hamann, 428 S.W.3d at 228.

2. Analysis

At the final pretrial hearing, counsel for the State and Eduardo argued over the 

State’s disclosure of expert witnesses. The arguments of counsel provide the following:

[EDUARDO’S COUNSEL 1]: Your Honor, on September 28th, 2016, the 

State filed its notice of expert witnesses. In that 

notice—what is her name again, I’m sorry.

[PROSECUTOR]: Jennifer Smith.

[EDUARDO’S COUNSEL 1]: Ms. Smith was never disclosed.

[EDUARDO’S COUNSEL 2]: We have the notices to the Court.

[EDUARDO’S COUNSEL 1]: We have the notice, Your Honor.

 2 The trial was governed by an earlier version of the Texas Code of Criminal Procedure, which 

required a ruling from the trial court before the State had to produce the response. See Act of Jun. 15, 

2015, 84th Leg., Ch. 459, 2015 TEX. GEN. LAWS 1774 (amending article 39.14(b) to eliminate the need for 

a court order). The record contains no such order. However, from the arguments of counsel to the trial 

court, it appears that the State responded to the request without awaiting an order from the trial court. 

Accordingly, the distinction between the different versions of the statute is not relevant in this case. We 

will refer to the current statute for ease of reference.
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[PROSECUTOR]: We would ask to amend our notice, Judge. 

Jennifer Smith was the private Lab Corps which 

was noted and discussed in the supplemental 

reports by the investigators that investigated this 

case since before June of ‘15.

[EDUARDO’S COUNSEL 1]: However, Your Honor, the rules are very clear, 

they must be disclosed prior to trial, and I will 

look at the rule, but the morning of trial is not the 

time to disclose witnesses, Your Honor. We 

will be asking that she be stricken.

[COURT]: And she [is] an expert on what?

[PROSECUTOR]: The DNA.

[COURT]: DNA?

[PROSECUTOR]: DNA. And she was disclosed in a subpoena 

list long before this setting. I believe the

subpoena list for this case has been filed, and I 

expect her name would be in the last subpoena 

list.

[EDUARDO’S COUNSEL 2]: Your Honor—

[EDUARDO’S COUNSEL 1]: Again, Your Honor, that’s why we filed our 

request. That’s why there are rules of

evidence. That’s why we always abide and 

play by them. And because she was not 

disclosed, Your Honor, we are going to be 

asking that you—that she be stricken.

[COURT]: All right. The Motion to Strike will be denied. 

The Court will grant the Motion to Amend the 

Expert List.

[EDUARDO’S COUNSEL 1]: Your Honor, and I will reurge my motion, Your 

Honor, pursuant to Article 39.14 of the Texas 

Code of Criminal Procedure, Rules of Evidence 

702, 703 and 705, Your Honor, it is required that 

it be disclosed, not be disclosed right before we 

pick a jury, because we would not have been 

afforded the opportunity to properly, to properly 
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prepare for this trial. That’s why the witnesses, 

expert witnesses must be disclosed in order for 

us to determine whether we need to retain our 

own witnesses to review their reports or what 

they will be testifying to, Your Honor. And they 

didn’t. They do it right now. What opportunity 

do we have on behalf of my client to adequately 

prepare for his defense if that expert was not 

disclosed?

[PROSECUTOR]: There is no surprise on this case, Judge. 

Counsel has been provided all the discovery we 

have had, they have had the supplements from 

Texas Ranger Patrick O’Connor, from 

Sergeant—

[COURT]: Okay. Well, I don’t care about them on this 

witness, was there a report generated by her?

[PROSECUTOR]: Yes, and it’s in the file. It’s been disclosed to 

them.

[COURT]: Okay.

[PROSECUTOR]: It was part of the discovery.

[EDUARDO’S COUNSEL 1]: Well, but then again, Your Honor, the rules don’t 

say you provide a report. The rules are and the 

law is that that is why they must put it in writing 

and disclose their experts, because they rely

sometimes on other experts to testify from 

another expert’s report. That’s why we have to 

request that they list who they will be calling, not 

just substitute Nilly-Willie [sic] at the time of trial. 

How am I going to know—see, I didn’t even 

know her name until right now. How am I going 

to know how to adequately prepare. I didn’t 

know her name, how I am going go look to see 

whether this expert has ever been sanctioned,

has ever been disqualified as an expert? I 

obviously don’t have the time to do it now, we 

are going to be selecting a jury. That’s why we 

have the Rules of Evidence, and the request. 

And I filed my Motion for Discovery since 
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October of 2016. I didn’t file it last week. I 

didn’t file it last month. I filed it three months 

ago. And for them to come in this morning and 

tell us who it is, it’s not fair play. And not only 

that, Your Honor, my client’s due process has 

been violated and has continued to be violated 

if the Court grants them leave of court to amend

their disclosure of experts. And it is not fair 

play and it is against the rights and due process 

of my client.

[PROSECUTOR]: Judge, counsel has been aware of the Sheriff’s 

Department seeking a private lab early on in this 

investigation to test the blood that was collected

from the Veterans Tire Shop to connect it to this

homicide. That has been clearly made known 

to counsel. There was a lab return that 

matched the victim’s blood, Franky Palacios 

Paz, as drawn from his corpse and compared to 

the blood collected from the Veterans Tire. That 

was done by Lab Corps, by this individual, 

Jennifer Smith. That report has been provided 

to counsel long ago, Judge. There is no secret. 

There no surprise, okay? Now, they want it in 

writing, I’ll do it in writing right now, we are still 

prior to trial, trial hasn’t started.

[COURT]: I already granted the Motion to Amend.

As for Smith’s testimony, the State’s appellate brief aptly notes, as it did in the trial 

court, that Smith’s report was provided to Eduardo’s counsel before trial and that 

Eduardo’s counsel could have reasonably anticipated that Smith would testify. The State 

also posits that there is no evidence of bad faith on its part. In light of the record before 

us, we cannot say that the trial court abused its discretion in granting the State leave to 

amend its expert disclosure and overruling Eduardo’s objection to Smith being called as 

a witness by the State. See Wood, 18 S.W.3d at 649. 
15

As for Chapa’s testimony, Eduardo’s appellate brief contends that the “trial court 

abused its discretion when it permitted the State to call witness Chapa because the 

prosecution never placed him on their trial witness list and he remained unknown to the 

defense until the moment he was called to the stand.” Eduardo fails to direct us to any 

portion in the record wherein he objected to Chapa being called to testify by the State. 

See TEX. R. APP. P. 33.1. Assuming Eduardo preserved the error he now complains of, 

we cannot conclude that the trial court abused its discretion in permitting Chapa to testify. 

The State’s appellate brief notes that Chapa’s identification of Palacio-Paz’s fingerprints 

was included in O’Connor’s supplemental report, which was disclosed to Eduardo’s 

counsel. Thus, just as with Smith, Eduardo’s counsel could have reasonably anticipated 

that Chapa would testify. See id. Moreover, Eduardo fails to direct us to any evidence 

relating to bad faith on the State’s part. See id.

We overrule Eduardo’s second and third issues.3

C. Cumulative Error

By his sixth issue, Eduardo argues that his conviction should be reversed because 

of the cumulative error. Multiple errors may be found to be harmful in their cumulative 

effect even if each error considered separately would be harmless. Chamberlain v. 

State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). The mere existence of multiple 

errors, however, does not warrant reversal unless they operated in concert to undermine 

the fundamental fairness of the proceedings. Estrada v. State, 313 S.W.3d 274, 311 

 3 We need not address Eduardo’s fourth and fifth issues in light of our disposition of his second 

and third issues. See TEX. R. APP. P. 47.1 (providing that the court of appeals must hand down a written 

opinion that is as brief as practicable but that address every issue raised and necessary to final disposition 

of the appeal).
16

(Tex. Crim. App. 2010). Moreover, if an individual’s claims of error lack merit, then there 

is no possibility of cumulative error. Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. 

App. 2009). Eduardo has not demonstrated any trial court error from which we could 

consider cumulative harm. 

We overrule Eduardo’s sixth issue.

III. CONCLUSION

We affirm the trial court’s judgment.

 LETICIA HINOJOSA

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

24th day of January, 2019.