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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ADRIAN HERRERA,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-19-00281-CR

Appeal from the

409th Judicial District Court

of El Paso County, Texas

(TC# 20160D04875)

O P I N I O N

Appellant Adrian Herrera appeals from his convictions for three felony offenses: engaging 

in organized criminal activity--murder; tampering/fabricating physical evidence with intent to 

impair a human corpse; and tampering/fabricating physical evidence with intent to impair as to a 

carpet. In a related case that we decide today, he also appeals his conviction for engaging in 

organized criminal activity--aggravated kidnapping. In his sole issue in this appeal, Appellant 

argues that the trial court erred by failing to instruct the jury on the accomplice-witness rule, 

thereby depriving him of a fair and impartial trial.

We affirm the convictions below.
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I. BACKGROUND

A. Factual Background

This case arises out of a series of events that took place in September 2016, which 

culminated in the death of Anthony Trejo followed by the dismemberment and disposal of Trejo’s 

body. From the proceedings below, we gather that the persons involved in these events were 

regular participants in the sale and use of methamphetamine. The evidence presented at trial 

showed the facts to be as follows:

On the night of September 9, 2016, Appellant and Isaac Lujan1temporarily exchanged 

vehicles. When Isaac returned home, he had a discussion with several other people, including 

James Hall, about possibly driving to Los Angeles to purchase methamphetamine. The next 

morning, Isaac and Hall decided to pawn some tools they had found in Appellant’s SUV for gas 

money.

Later that day, Hall picked up Janet Lucero, an acquaintance, and Trejo, whom he had not 

previously met, and drove them to Isaac’s house. Trejo then pulled a gun on Hall, forced him into 

the passenger seat, and drove to a car wash where Appellant was waiting in his SUV, along with 

Roberto Favela and Erlinda Lujan. Appellant and Trejo had a conversation in Spanish, then 

Appellant told Trejo to follow him to 8912 Ortega Court. When they arrived, Hall was taken 

inside, tied up, and beaten by three men--Favela, Steven Ramirez, and Phillip Esquer--while being 

questioned about stealing the tools. Several hours later, Hall was transported to Appellant’s 

apartment at 7361 Alameda, where he was held captive by Appellant and Erlinda for the next two 

days before being released.

1 This case involves two unrelated individuals with the last name Lujan. For clarity, we will refer to Isaac Lujan as 

“Isaac” and Erlinda Lujan as “Erlinda.” 
3

During that time, Trejo and Isaac were also brought to Appellant’s apartment and 

restrained. Trejo was put into Appellant’s bathtub, with his hands and feet bound by audio-video 

cables. He had been beaten very severely. He was extremely bloody, incoherent, bubbling and 

foaming out of his nose, unable to speak, and struggling to breathe.

On the night of September 16, 2016, Appellant and some of his acquaintances--Lucero, 

Erlinda, and George Bonales--met up with Michael Aceto in the parking lot of a warehouse on 

Industrial Street. Aceto was a daily methamphetamine user who was homeless and occasionally 

sold drugs to make money. Aceto would get the drugs from a man he knew as “Frank,” who in 

turn obtained them from Appellant (whom Aceto knew as “The Kid”). Aceto had never met or 

heard of Trejo.

That night, Frank told Aceto that he “needed to help out The Kid.” When Aceto arrived at 

the warehouse parking lot, Appellant told Aceto that he needed to dispose of some “trash” that was 

in the back of a black Lincoln Navigator. Aceto drove the Navigator out to the desert near Railroad 

Drive, followed by Appellant and Lucero riding on a motorcycle, and Bonales and Erlinda driving 

a pickup truck. The three vehicles stopped at a Valero gas station on the way. Upon reaching the

destination, Aceto opened the back of the Navigator and found several large trash bags stacked on

a flat piece of cardboard. He slid the cardboard with the trash bags out of the vehicle and left the 

scene, leaving Bonales and Erlinda to bury the bags.2 Appellant, Lucero, Bonales, and Erlinda

stopped at a 7-Eleven on Sun Valley, near Railroad Drive, on their way back into town.

Aceto later directed police to the location where he left the trash bags, which were exhumed 

and found to contain the remains of Trejo’s dismembered corpse. Aceto was arrested and charged 

with tampering/fabricating physical evidence with intent to impair a corpse. He reached a plea 

2 Appellant and Lucero had apparently turned back when the vehicles left the paved road and turned onto loose dirt.
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deal in which he agreed to testify against Appellant in exchange for a suspended sentence of 10 

years’ probation.

A search warrant executed at 8912 Ortega Court revealed multiple bloodstains, as well as 

a large amount of stained carpet, foam under-carpet padding, and wooden carpet tack strips, all of 

which had been ripped up from the floor. Several of the bloodstains were found to be consistent 

with a person being struck repeatedly, at or near the level of the floor. DNA-testing the blood 

stains revealed multiple matches to Trejo; others matched or were inconclusive as to Favela, 

Ramirez, Esquer, and several others.

B. Procedural History

Appellant was charged with engaging in organized criminal activity as to Trejo’s murder;

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tampering/fabricating physical evidence with intent to impair a human corpse; and 

tampering/fabricating physical evidence with intent to impair as to the carpet.

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 The case was tried 

to a jury. Hall and Aceto both testified at trial. The jury found Appellant guilty on all three counts.

The trial court sentenced Appellant to 60 years’ confinement for the organized criminal activity

charge, 20 years’ confinement for tampering with Trejo’s corpse, and 10 years’ confinement for 

evidence tampering as to the carpet, with all sentences to run concurrently.

On appeal, Appellant challenges his conviction of all charges, arguing in a single appellate 

issue that the trial court erred by failing to include an accomplice-witness instruction in its charge 

to the jury. Appellant contends that Aceto and Hall were both accomplices, and that the lack of 

an accomplice-witness instruction deprived him of a fair and impartial trial.

3 The murder combination consisted of Appellant, Erlinda, Favela, Ramirez, and Romuldo Trujillo.

4 Appellant was also charged by separate indictment with two counts of engaging in organized criminal activity--

aggravated kidnapping with regard to Isaac and Hall. The two cases were consolidated and tried together.
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II. STANDARD OF REVIEW

When analyzing claimed jury charge error, we utilize a two-pronged test. Ngo v. State, 

175 S.W.3d 738, 743 (Tex.Crim.App. 2005) (en banc); Almanza v. State, 686 S.W.2d 157, 171 

(Tex.Crim.App. 1984) (en banc). The first prong requires us to determine whether error exists. 

See Ngo, 175 S.W.3d at 743. If no error is found, then the analysis ends; however, if charge error 

is found, the error is analyzed for harm. See Almanza, 686 S.W.2d at 171.

The amount of harm necessary to warrant a reversal depends on whether the accused 

objected to the jury charge, and thereby preserved the error. Ngo, 175 S.W.3d at 743; Almanza, 

686 S.W.2d at 171; see also Neal v. State, 256 S.W.3d 264, 278 (Tex.Crim.App. 2008). If the 

error was preserved by a timely objection, we review the record to determine if the error caused 

the accused “some harm.” Ngo, 175 S.W.3d at 743; Almanza, 686 S.W.2d at 171. However, if no 

objection was lodged, as Appellant concedes here , we review the unpreserved jury charge error 

for egregious harm. Almanza, 686 S.W.2d at 171. Egregious harm is actual, rather than 

theoretical, and must be of such a nature that it deprived the accused of a fair and impartial trial or 

otherwise vitally affected the accused’s defensive theory at trial. See Villarreal v. State, 453 

S.W.3d 429, 433 (Tex.Crim.App. 2015); Cosio v. State, 353 S.W.3d 766, 777 (Tex.Crim.App. 

2011). “Egregious harm is a ‘high and difficult standard’ to meet, and such a determination must 

be ‘borne out by the trial record.’” Villarreal, 453 S.W.3d at 433, quoting Reeves v. State, 420 

S.W.3d 812, 816 (Tex.Crim.App. 2013). In making an egregious harm determination, we examine 

(1) the entire charge; (2) the state of the evidence, including contested issues and the weight of the 

evidence; (3) arguments of counsel; and (4) any other relevant information revealed by the record 

of the trial as a whole. See Allen v. State, 253 S.W.3d 260, 264 (Tex.Crim.App. 2008).
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III. THE ACCOMPLICE-WITNESS RULE

A criminal defendant cannot be convicted based on the testimony of an accomplice unless 

the accomplice’s testimony is corroborated by other, non-accomplice evidence “tending to connect 

the defendant with the offense committed.” TEX.CODE CRIM.PROC.ANN. art. 38.14; see Druery v. 

State, 225 S.W.3d 491, 498 (Tex.Crim.App. 2007). If a testifying witness is an accomplice, or if 

there is conflicting evidence as to whether the witness may be an accomplice, the trial court must 

instruct the jury accordingly. Ash v. State, 533 S.W.3d 878, 886 (Tex.Crim.App. 2017).

An accomplice is someone who participated before, during, or after the commission of the 

offense with which a criminal defendant is charged, to the extent that the person could be 

prosecuted for the same or a lesser-included offense. Herron v. State, 86 S.W.3d 621, 631 

(Tex.Crim.App. 2002) (en banc). To be considered an accomplice, a person can be subject to 

prosecution as a principal, as a direct party, or as a co-conspirator; however, there must be

sufficient evidence to connect the person to the offense “as a blameworthy participant.” Ash, 533 

S.W.3d at 882 n.4. Under the law of parties, a person may be subject to prosecution if, “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 if, “in the attempt to carry out 

a conspiracy to commit one felony, another felony is committed by one of the conspirators . . .

[and] 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(a)(2), (b).

A witness is an accomplice as a matter of law if either (1) the witness has been charged 

with the same offense as the defendant or a lesser-included offense, even if the charges were 
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subsequently dismissed in exchange for testimony against the defendant,

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or (2) the evidence is 

uncontradicted or so one-sided that no reasonable juror could conclude that the witness was not an 

accomplice. Ash, 533 S.W.3d at 886. When a witness is an accomplice as a matter of law, the 

trial court must instruct the jury about the need for evidence to corroborate the witness’ testimony.

Id.

If neither of the above criteria are met but the record contains conflicting or inconclusive 

evidence that raises a question regarding whether the witness may have been an accomplice, the 

trial court should submit the issue to the jury to determine whether the witness was an accomplice 

as a matter of fact. Id. at 884. When there is no evidence to suggest that a witness was an 

accomplice, the defendant is not entitled to an accomplice-witness instruction. See Zamora v. 

State, 411 S.W.3d 504, 513 n.4 (Tex.Crim.App. 2013).

IV. DISCUSSION

Appellant contends that Hall was an accomplice as a matter of fact and Aceto was an 

accomplice as a matter of law, presumably as to all counts, and that the trial court egregiously 

erred by failing to include accomplice-witness instructions in the jury charge.

The State concedes that Aceto was an accomplice-witness as to the corpse-tampering 

charge only, and that the trial court erred in failing to include an accomplice-witness instruction 

for that count. However, the State asserts that the error was not egregious, as the corroborating 

evidence was sufficient to sustain Appellant’s conviction on that count. The State further contends 

that Aceto was not an accomplice-witness to any of Appellant’s other offenses, and Hall was not 

an accomplice-witness to any of Appellant’s offenses at all.

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If the charges against the witness were dismissed for another reason, the witness is no longer an accomplice as a 

matter of law--but, depending on the evidence, may still be an accomplice as a matter of fact. Ash, 533 S.W.3d at 

884.
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We agree with the State.

A. James Hall Was Not an Accomplice to Any Charged Offense

Hall was not an accomplice to any of the offenses of which Appellant was convicted, either 

as a matter of fact or as a matter of law. Hall was not charged, and could not have been charged, 

with any of these offenses or any lesser-included offenses. There was no evidence presented at 

trial that raised any question as to whether Hall might have been a “blameworthy participant” in 

any of the offenses of which Appellant was convicted. Ash, 533 S.W.3d at 882 n.4.

There is no evidence to suggest that Hall participated in any way in Trejo’s murder or the 

preceding events, the disposal of Trejo’s corpse, or any attempts to clean or remove the carpet at 

8912 Ortega. In fact, Hall had been kidnapped (by Trejo) and was being held against his will at 

Appellant’s apartment during the timeframe that Trejo was being beaten elsewhere. And although 

there was some overlap in the time periods that Hall and Trejo were held captive at Appellant’s 

apartment, Hall did not participate in, solicit, encourage, direct, aid, or attempt to aid in any 

criminal conduct regarding Trejo. Mere presence at the location where a crime occurs does not 

make one an accomplice. Druery, 225 S.W.3d at 498. It appears that Trejo was still alive--

although barely--when Appellant released Hall, and there is no evidence indicating that Hall ever 

returned to either the Ortega or Alameda locations afterwards.

There is also no evidence that Hall was involved in a conspiracy with Appellant to commit 

a felony tied to Trejo’s murder. Appellant argues that Hall’s testimony about possibly going to 

Los Angeles with Isaac to purchase drugs is evidence that Hall was involved in a “drug enterprise” 

combination along with Appellant, Favela, Ramirez, Erlinda, Bonales, and others. This argument 

fails for two reasons. First, the only evidence of any drug-related combination involving Hall was 

limited to Isaac and the other two men who discussed the potential drug run to Los Angeles. 

Although Hall could arguably have been subject to prosecution for this unrealized drug trafficking 
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conspiracy had he not been granted immunity, there is no evidence that Appellant--or any of the 

other listed individuals--was ever involved. Second, even if Appellant had been involved in that 

combination, it would still constitute a separate, unrelated offense that could not cause Hall to be 

an accomplice-witness in this case. See Zamora, 411 S.W.3d at 512 n.4. There is no evidence 

whatsoever to suggest that Trejo’s murder was committed in the course of an attempt to carry out 

a conspiracy to purchase methamphetamine in Los Angeles.

B. Michael Aceto Was an Accomplice to the Corpse-Tampering Count Only

As for Aceto, we first address whether he was an accomplice to the counts of engaging in 

organized criminal activity as to Trejo’s murder or tampering/fabricating evidence as to the carpet.

Aceto was not charged with either of these offenses, and there is no basis upon which he 

could have been prosecuted for these or any lesser-included offenses. Accordingly, Aceto was not 

an accomplice as a matter of law to either of these counts. Ash, 533 S.W.3d at 886.

Nor did the evidence at trial raise an issue of whether Aceto might have been an accomplice 

to either of these offenses or any lesser-included offenses as a matter of fact. There is no evidence 

connecting him to any such offense as a “blameworthy participant.” Ash, 533 S.W.3d at 882 n.4. 

Aceto’s only involvement in this case was limited to the disposal of Trejo’s body, and Texas law 

is clear that merely assisting in the moving of a murdered corpse does not make a witness an 

accomplice to the murder. Smith v. State, 721 S.W.2d 844, 851 (Tex.Crim.App. 1986). There is 

no evidence to even suggest that Aceto participated in, solicited, encouraged, directed, aided, or 

attempted to aid in Trejo’s murder or in any attempts to clean or remove the carpet at 8912 Ortega.

Aceto testified that he had never met or even heard of Trejo prior to his participation in the police 

investigation for this case. 

There is also no evidence that Aceto was involved in any conspiracy to commit a felony 

during which Trejo’s murder foreseeably occurred. Aceto did testify that he occasionally sold
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drugs that he obtained from Frank, who got them from Appellant. Had Aceto not been granted 

immunity in exchange for his testimony, he arguably could have been subject to prosecution for 

distribution of methamphetamine in combination with Appellant and Frank. However, none of 

the charges in this case are related to methamphetamine distribution, and there is no indication that 

Trejo’s murder was committed in the course of an attempt by Appellant, Aceto, or Frank to carry 

out a conspiracy to distribute methamphetamine. Complicity with a defendant in an unrelated 

offense does not make a person an accomplice-witness. Zamora, 411 S.W.3d at 512 n.4.

However, Aceto was indicted for, and pled guilty to, the offense of tampering with Trejo’s 

corpse. Appellant was charged and convicted of the same offense. Aceto was thus an accomplicewitness as a matter of law as to this offense. Ash, 533 S.W.3d at 886.

C. The Jury Charge Was Erroneous on the Corpse-Tampering Count Only

A trial court has a duty to prepare a jury charge that accurately sets out the law applicable 

to the case. TEX.CODE CRIM.PROC.ANN. art. 36.14. The “law applicable to the case” includes an 

instruction on the accomplice-witness rule when the issue is raised by the evidence. Zamora, 411 

S.W.3d at 513. Even if an accomplice-witness instruction is not requested, the trial court must 

include it sua sponte if the evidence has raised the issue. Id. at 512.

The jury charge in this case did not include any instructions on the accomplice-witness

rule. Appellant did not request an accomplice-witness instruction or object to the omission of such 

an instruction. However, because Aceto was an accomplice as a matter of law to the offense of 

tampering with Trejo’s corpse, the trial court should have instructed the jury about the need for 

evidence to corroborate Aceto’s testimony on that count, and the failure to do so was error. 

Herron, 86 S.W.3d at 631. The State concedes that the charge erroneously failed to include an 

accomplice-witness instruction regarding Aceto, as to the corpse-tampering count only.
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As neither Hall nor Aceto was an accomplice to the offenses of engaging in organized 

criminal activity as to Trejo’s murder or tampering/fabricating physical evidence with intent to 

impair as to the carpet, Appellant was not entitled to accomplice-witness instructions on either of 

these counts. Zamora, 411 S.W.3d at 513 n.4. Therefore, the trial court did not err in omitting the

instructions on those counts.

D. The Error Did Not Result in Egregious Harm

We now consider whether the trial court’s failure to instruct the jury about the accomplicewitness rule on the corpse-tampering count deprived Appellant of a fair and impartial trial or 

otherwise vitally affected his defensive theory at trial, thereby constituting egregious harm. See

Villarreal, 453 S.W.3d at 433. We find that it did not.

The accomplice-witness rule requires an accomplice’s testimony to be corroborated by 

other evidence “tending to connect the defendant with the offense committed.” TEX.CODE 

CRIM.PROC.ANN. art. 38.14. Accordingly, non-accomplice evidence can render the erroneous 

omission of an accomplice-witness instruction harmless. Herron, 86 S.W.3d at 632. The nonaccomplice evidence does not need to prove all the elements of the alleged offense; rather, the

corroborating evidence is sufficient if, after eliminating the accomplice testimony from 

consideration, there is any other evidence which “tends to connect” the defendant with the crime. 

Hernandez v. State, 939 S.W.3d 173, 176 (Tex.Crim.App. 1997) (en banc). Under the egregiousharm standard, failure to include an accomplice-witness instruction is generally harmless, unless 

the corroborating evidence is “so unconvincing in fact as to render the State’s overall case for 

conviction clearly and significantly less persuasive.” Herron, 86 S.W.3d at 632 (internal citation 

and quotation marks omitted).
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After examining the record in this case, we find that, after putting Aceto’s testimony aside,

there is sufficient corroborating evidence tending to connect Appellant to the offense of 

tampering/fabricating physical evidence with intent to impair Trejo’s corpse, as follows:

• James Hall testified that Trejo, severely beaten and barely alive, was brought to Appellant’s 

apartment and put into the bathtub.

• A photograph recovered from Appellant’s phone, dated September 12, 2016, depicts Trejo

lying in a bathtub in a bloodied state. The walls and floor in the background of that photo 

appear to match the photos taken by police in the bathroom of Appellant’s apartment, and 

clearly do not match the photos taken by police in either bathroom at 8912 Ortega.

• Testimony from Officer Dexter Brown and an impound slip established that Appellant had 

been pulled over while driving a black Lincoln Navigator on September 3, 2016.

• Appellant’s cell phone records from September 16 and 17, 2016 place him in the general 

area of his apartment at 11:20 p.m.; in the area of the warehouse on Industrial Avenue at 

11:28 and 11:30 p.m.; in the area of the Valero at 11:52 p.m.; in the area of Railroad Drive 

at 12:06 a.m.; in the area of the 7-Eleven on Sun Valley from 12:46 a.m. to 1:00 a.m.; and 

back in the area of his apartment on Alameda at 2:05 a.m.

• Surveillance video from the Valero station on the night of September 16, 2016 shows the 

three cars in the caravan to the desert arriving at approximately 11:45 p.m.; Aceto in a 

black Lincoln Navigator, Appellant and Lucero on a motorcycle, and Bonales and Erlinda

in a pickup truck, and also shows Appellant and Aceto inside the convenience store.

• Surveillance video from the 7-Eleven at around 12:52 a.m. on September 17, 2016 depicts 

Appellant, Lucero, Bonales, and Erlinda inside the store for several minutes.

• Trejo’s dismembered body was disinterred and recovered by El Paso Police near the 11600 

block of Railroad Drive.

After reviewing this non-accomplice evidence, we find that it is reliable and tends to 

connect Appellant to the offense of tampering/fabricating physical evidence with intent to impair 

Trejo’s corpse, and that it is not “so unconvincing in fact as to render the State’s overall case for 

conviction clearly and significantly less persuasive.” Herron, 86 S.W.3d at 632.

Nor do the opening or closing arguments of counsel suggest that the omission of an 

accomplice-witness instruction on this count had any effect on the outcome. In fact, during closing 

Appellant’s counsel came right out and admitted: “I don’t think there is any doubt whatsoever that 
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[Appellant] did, in fact, participate and did commit the offense of Tampering with a Corpse. All 

right. You heard that evidence. It is clear. It is clear that that happened.”

After reviewing the record of the trial as a whole, there is no indication that the trial court’s 

error affected the outcome of this case. The non-accomplice evidence presented by the State was 

sufficient to reliably corroborate Aceto’s testimony, and Appellant’s counsel even appears to have 

conceded that Appellant was guilty of tampering with Trejo’s corpse. The trial court’s error did 

not deprive Appellant of a fair and impartial trial and did not undermine his defensive theory at 

trial. Accordingly, there was no egregious harm.

V. CONCLUSION

We hold that (1) the trial court erred by failing to instruct the jury on the accomplicewitness rule as to the count of tampering/fabricating physical evidence with intent to impair a 

corpse; (2) the error was not egregiously harmful; and (3) the trial court did not err by omitting 

accomplice-witness instructions on either of the remaining counts.

Appellant’s sole issue on appeal is overruled, and the convictions below are affirmed.

JEFF ALLEY, Justice

March 9, 2021

Before Rodriguez, C.J., Palafox, and Alley, JJ.

(Do Not Publish)