Opinion issued December 15, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-00783-CR

———————————

JUAN JIMENEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Case No. 1408197

MEMORANDUM OPINION

A jury convicted appellant, Juan Jimenez, of the offense of capital murder, 

and, because the State did not seek the death penalty, the trial court automatically 
2

assessed his punishment at confinement for life.1 In three issues, appellant contends 

that (1) the trial court erred in admitting evidence of several extraneous offenses in 

violation of Rules of Evidence 403 and 404(b); (2) the State failed to present 

sufficient evidence that he intentionally committed murder, as required to convict 

him of capital murder; and (3) the trial court erred in denying an instruction 

informing the jury that a particular witness must be considered an accomplice as a 

matter of law.

We affirm.

Background

A. Factual Background

In the fall of 2013, Eric Nieto and appellant, who was twenty-four, had been 

friends for approximately two years. Nieto and appellant knew each other’s families, 

and appellant’s girlfriend would occasionally babysit Nieto’s two small children. 

Nieto, his common-law wife Cynthia Salguero, their children, and Nieto’s brotherin-law David Arriola lived in the Greenridge townhomes in north Houston. 

Appellant and his girlfriend had visited Nieto’s family at this address.

Around late August or early September 2013, Nieto and appellant’s friendship 

soured after appellant allegedly stole Nieto’s 9mm rifle from his bedroom. Nieto 

 

1 See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2016) (providing that person 

commits capital murder if person intentionally commits murder in course of 

committing or attempting to commit burglary or arson).
3

usually kept this rifle on top of the dresser in his bedroom, and only appellant knew 

of this hiding place. The gun went missing on the same day that appellant’s 

girlfriend was alone in Nieto’s home babysitting Nieto’s children. Nieto confronted 

appellant about this theft in a phone conversation, and the men agreed to have a oneon-one fight at appellant’s house. When Nieto arrived at appellant’s house, a group 

of people was present outside, and Nieto drove home instead of stopping at 

appellant’s house. About half an hour later, appellant called Nieto and they decided 

to fight one-on-one at Nieto’s house. When Nieto came outside his house, he saw 

appellant and three carloads of people, some of whom had guns. Salguero called 9-

1-1, but appellant left before the police arrived.

In response to this incident, Nieto and Salguero decided to move to a new 

house, which they did that same week. Nieto informed very few people of his new 

address, and he did not inform appellant. A security guard from a private security 

company, Seal Security, patrolled the townhome complex pursuant to a contract that 

Seal had with the complex’s homeowner’s association. Nieto informed the regular 

security guard, Officer Jackson, of the incident with appellant and told him that Nieto 

and his family were moving.

Approximately six weeks later, around midnight on November 9, 2013, 

appellant called his friend Ruben Pineda, who was fifteen years old at the time, and 

the two of them made plans to meet up roughly halfway between their respective 
4

homes. Appellant did not immediately recognize Pineda when he approached, and 

appellant pulled out a gun and pointed it at Pineda. Pineda identified himself, and 

appellant lowered the gun. Pineda testified that he had seen appellant with this gun 

on a “daily basis,” and he stated that the gun was a .357 caliber. Pineda also stated 

that appellant was slurring his words and that he appeared to be intoxicated on 

Xanax.

Appellant and Pineda visited a convenience store and then they decided to go 

to a local bar called Los Cabos. Salguero, Nieto’s common-law wife, worked at this 

bar, and when appellant and Pineda arrived, they saw both Salguero and Nieto. 

Pineda and Nieto greeted each other in a friendly manner, but appellant and Nieto 

did not greet each other at all. Shortly after Pineda and appellant arrived, Nieto went 

to the restroom. Pineda and appellant began playing a game of pool, but appellant 

almost immediately abandoned the game in favor of also going to the restroom. 

Nieto and appellant had a “verbal confrontation” in the restroom that escalated into

a physical fight. Pineda witnessed a portion of this fight, as did Salguero and the 

owner of Los Cabos. The owner broke up the fight and told appellant and Pineda to 

leave the bar. As the owner escorted appellant and Pineda out, Salguero saw

appellant make a hand gesture in Nieto’s direction that imitated the shooting of a 

gun. Salguero had seen appellant in possession of a handgun on a previous occasion.
5

After being kicked out of Los Cabos, appellant decided to vandalize Nieto’s 

home by throwing a rock through a window, and he and Pineda began walking to 

the Greenridge townhomes because they believed Nieto still lived there. When they 

arrived at Nieto’s old unit, they looked through the windows of the home, and they 

were surprised to discover that it was empty and that no one was living there. 

Appellant went inside the townhome and Pineda stayed outside. Pineda then heard 

several thumps and a sound of breaking glass, and when he looked inside the 

window, he saw a fire.

After the fire started, Pineda saw the flashing lights of a Seal Security car 

through the window. He shouted a warning to appellant, and the two of them began 

quickly walking through the townhome complex. As appellant and Pineda were 

walking away, Rafael Almanza, the Seal Security guard temporarily assigned to the 

Greenridge townhomes on this date and the complainant in this case, appeared 

behind them and yelled at them to stop. Instead of stopping, appellant and Pineda 

began to run. Pineda testified that appellant turned and fired at least four shots in 

Almanza’s direction. After the shooting stopped, Pineda ducked behind a parked 

car and noticed that his hand was “red and wet,” and he realized that he had been 

shot in the arm. Pineda looked back towards Almanza and saw him lying face-up 

and unmoving on the ground with a bullet wound in his head.
6

When Pineda stepped out from behind the parked car, he did not see appellant 

anywhere. Pineda headed towards appellant’s house and met up with appellant 

along the way. Appellant’s mother and brother were also present at the house, and 

Pineda testified that they “seemed to already know” what had happened that night. 

He stated that he and appellant freely discussed what had happened in the presence 

of appellant’s mother and brother.2 While at appellant’s house, both appellant and 

Pineda changed clothes. Appellant changed into a shirt that read “snitches get 

stitches.” Pineda testified that, to him, appellant’s shirt meant that “[i]f [Pineda] said 

anything that happened that night, [he] was either going to get killed or brutally 

beat.” Pineda also testified that appellant told him that appellant was “going to get 

caught” because he was the only one in the neighborhood who usually got into 

arguments with the Seal Security guard who regularly patrolled the Greenridge

townhomes.

Two days later, Pineda went to school and ultimately confided in one of his 

teachers about what had happened with appellant and his own injury from the 

incident. Pineda was arrested later that day, and he spoke with officers from the 

Homicide Division of the Houston Police Department. The State charged Pineda 

 

2 Appellant’s brother, Ricardo Jimenez, denied that appellant spoke about the 

shooting, instead stating that Pineda did most of the talking. He testified that he was 

not sure what had happened, but he could tell that Pineda had been shot in the arm. 

He also agreed that appellant owned a .357 caliber handgun.
7

with the misdemeanor offense of criminal mischief as a result of his conduct in 

connection with this incident.

David Arriola, who lived with Nieto and Salguero, testified that on the night 

of the shooting, while he was working as a security guard at a nearby apartment 

complex, he heard gunshots.3 Based on the number of shots he heard, he estimated 

that the shooter used nearly two clips’ worth of bullets. Arriola got off work at 3:00 

a.m., approximately two hours after he heard the gunshots. He followed the sound 

of sirens to the house where he had lived with Nieto and Salguero, and he saw 

firefighters hosing down the unit. Arriola spoke with a reporter while standing 

outside at the scene, and during the course of the conversation he asked the reporter 

if he knew whether a 9mm or a .357 had been used. He indicated that he might know 

who was involved. The reporter directed Arriola to HPD Sergeant M. Holbrook. 

Arriola informed Sergeant Holbrook that he knew that appellant carried a .357, and 

he took Holbrook to appellant’s address.4

 

3 Arriola also testified that appellant had stolen Nieto’s 9mm gun, that Nieto and 

appellant’s friendship had soured as a result of this, that appellant had threatened 

Nieto, Salguero, and their children, that they all moved from the Greenridge 

townhomes due to these threats, that Nieto made a quick decision to move and not 

tell anyone their new address, and that they did not want appellant to know their 

new address.

4 Sergeant Holbrook did not find a .357 handgun when he searched appellant’s 

residence, but he did find four unfired .357 cartridges.
8

Almanza died as a result of his injuries. The autopsy revealed that Almanza 

had sustained six penetrating gunshot wounds, including wounds to his head, face, 

neck, shoulder, chest, and back, and a graze wound to his hand. Eight .357 caliber 

cartridge casings were recovered from the scene, all fired from the same weapon.

B. Procedural Background

The State charged appellant with capital murder. Specifically, the State 

charged appellant with intentionally causing the death of Almanza while in the 

course of committing and attempting to commit either burglary or arson.

At trial, before Nieto, Salguero, Arriola, and Pineda testified before the jury, 

they all testified outside the presence of the jury concerning several extraneous bad 

acts by appellant. Defense counsel repeatedly objected to evidence that appellant 

had stolen Nieto’s gun, that appellant had threatened Nieto and his family, that 

Salguero had seen appellant with a gun, that appellant was known to carry a .357, 

that appellant had been warned to stay off the Greenridge townhomes property, that 

appellant and Nieto had gotten into a fight at Los Cabos, that Salguero saw appellant 

make a threatening hand gesture to Nieto while leaving Los Cabos, that appellant 

pointed a gun at Pineda on the night of the incident, that appellant was the only 

person known to get into arguments with Seal Security officers, that appellant put 

on a shirt after the incident that stated “snitches get stitches,” and that appellant had 

possibly taken Xanax on the night of the incident. Defense counsel objected to all 
9

of this testimony as irrelevant, as inadmissible evidence of extraneous bad acts, and

on the ground that the prejudicial effect of the testimony substantially outweighed 

its probative value. The trial court overruled these objections. The trial court gave 

oral limiting instructions and included the following limiting instruction in the 

charge:

You are further instructed that if there is any evidence before you in 

this case regarding the defendant’s committing an alleged offense or 

offenses other than the offense alleged against him in the indictment in 

this case, you cannot consider such evidence for any purpose unless you 

find and believe beyond a reasonable doubt that the defendant 

committed such other offense or offenses, if any, and even then you 

may only consider the same in determining the motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence of mistake or 

accident of the defendant, if any, in connection with the offense, if any, 

alleged against him in the indictment and for no other purpose.

At the charge conference, defense counsel requested that the trial court 

instruct the jury that Pineda was an accomplice as a matter of law. The State 

responded that Pineda had not been charged as either a party or a co-conspirator to 

capital murder and that Pineda did not have the requisite mental state for capital 

murder. The State argued that the proposed charge, which instructed the jury to 

determine as a fact question whether Pineda was an accomplice, was correct. The 

trial court denied appellant’s request. The charge included instructions about 

accomplices, law of parties, conspiracy, and the corroboration of accomplice 

testimony. The charge then stated:
10

[I]f you believe from the evidence beyond a reasonable doubt that an 

offense was committed and you further believe from the evidence that 

the witness, Ruben Pineda, was an accomplice, or you have a 

reasonable doubt whether he was or not, as that term is defined in the 

foregoing instructions, then you cannot convict the defendant upon the 

testimony of Ruben Pineda unless you further believe that there is other 

evidence in the case, outside of the testimony of Ruben Pineda tending 

to connect the defendant with the offense charged in the indictment, and 

then from all the evidence you must believe beyond a reasonable doubt 

that the defendant is guilty.

The jury convicted appellant of the offense of capital murder. Because the 

State did not seek the death penalty, the trial court automatically assessed appellant’s 

punishment at confinement for life. This appeal followed.

Sufficiency of Evidence

In his second issue, appellant contends that the State failed to present 

sufficient evidence that he intentionally committed murder.5

A. Standard of Review

When reviewing the sufficiency of the evidence, we view all of the evidence 

in the light most favorable to the verdict to determine whether any rational fact finder 

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); Adames v. 

 

5

In his second issue, appellant argues that the evidence is both legally and factually 

insufficient. It is well established that the Court of Criminal Appeals has abolished 

factual-sufficiency review of convictions and, thus, the only standard that is used in 

evaluating the sufficiency of the evidence is the Jackson v. Virginia standard. See 

Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011).
11

State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard 

is only standard to use when determining sufficiency of evidence). The jurors are 

the exclusive judges of the facts and the weight to be given to the testimony. Bartlett 

v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). The jury, as the sole judge 

of credibility, may accept one version of the facts and reject another, and it may 

reject any part of a witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 

(Tex. Crim. App. 1986); see also Henderson v. State, 29 S.W.3d 616, 623 (Tex. 

App.—Houston [1st Dist.] 2000, pet. ref’d) (stating that jury can choose to 

disbelieve witness even when witness’s testimony is uncontradicted).

We may not re-evaluate the weight and credibility of the evidence or substitute 

our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 

(Tex. Crim. App. 2007). We afford almost complete deference to the jury’s 

credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. 

App. 2008). We resolve any inconsistencies in the evidence in favor of the verdict. 

Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record supports 

conflicting inferences, we presume that the factfinder resolved the conflicts in favor 

of the prosecution and therefore defer to that determination.”). Circumstantial 

evidence is as probative as direct evidence in establishing guilt, and circumstantial 

evidence alone can be sufficient to establish guilt. Sorrells v. State, 343 S.W.3d 152, 
12

155 (Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at 778). “Each fact need 

not point directly and independently to the guilt of the appellant, as long as the 

cumulative force of all the incriminating circumstances is sufficient to support the 

conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

B. Capital Murder

To establish that appellant committed the offense of capital murder, the State 

had to prove that appellant intentionally caused the death of Rafael Almanza by 

shooting him with a deadly weapon while in the course of committing or attempting 

to commit the offense of either burglary or arson. See TEX. PENAL CODE ANN.

§ 19.03(a)(2) (West Supp. 2016). A person acts intentionally, or with intent, “with 

respect to the nature of his conduct or to a result of his conduct when it is his 

conscious objective or desire to engage in the conduct or cause the result.” See id.

§ 6.03(a) (West 2011).

Intent is most often proved through circumstantial evidence, and a jury may 

infer intent from “any facts that tend to prove its existence, such as the acts, words, 

and conduct of the defendant.” Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d). A jury may infer intent to kill from the use of 

a deadly weapon, unless it would not be reasonable to infer that death or serious 

bodily injury could result from the use of the weapon. Id.; Dominguez v. State, 125 

S.W.3d 755, 761–62 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (stating that 
13

jury was entitled to infer intent to kill from defendant’s use of shotgun, which is “a 

deadly weapon per se”). A firearm is a deadly weapon per se. Dukes v. State, 486 

S.W.3d 170, 177 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (citing TEX. PENAL 

CODE ANN. § 1.07(a)(17)(A) (defining “deadly weapon” as including firearms)). 

When a defendant fires a deadly weapon at close range and death results, the law 

presumes an intent to kill. Sholars, 312 S.W.3d at 703; Childs v. State, 21 S.W.3d 

631, 635 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).

The State presented evidence that appellant and Pineda began quickly walking 

through the Greenridge townhomes complex when they saw Almanza, a private 

security guard, appear at the burning townhome unit. Almanza yelled at them to 

stop, but, instead of stopping, they began running away. During the chase, appellant 

turned and started shooting in Almanza’s direction. Eight .357 cartridge casings, 

matching the caliber of gun appellant was known to carry, were recovered from the 

scene. Almanza sustained six penetrating gunshot wounds and one graze wound, 

including wounds to his head, neck, and chest; and he died as a result of his injuries. 

Pineda, who was in between appellant and Almanza, estimated that he was 

approximately ten feet away from Almanza when he was shot.

A jury may infer intent from the conduct of the defendant. See Sholars, 312 

S.W.3d at 703. After setting fire to a townhome unit, appellant pulled out a firearm 

and began shooting at the security guard pursuing him as he ran from the scene. A 
14

firearm is a deadly weapon per se. Dukes, 486 S.W.3d at 177. And a jury may infer 

intent to kill from the use of a deadly weapon. Sholars, 312 S.W.3d at 703. 

Moreover, when a defendant fires a deadly weapon at close range and death results, 

as in this case, the law presumes an intent to kill. Id.; see also Medina v. State, 7 

S.W.3d 633, 637 (Tex. Crim. App. 1999) (“Opening fire with an automatic rifle, at 

close range, on a group of people supports the conclusion that appellant acted with 

the specific intent to kill.”). Based on the record, the jury in this case reasonably 

could have inferred that appellant had the intent to kill when he turned around and 

shot at Almanza, who was pursuing him as he fled from setting a fire in a vacant 

townhome.

Appellant argues that the State failed to prove specific intent to kill because 

“[t]here was no more intent on the part of Appellant to shoot the decedent than there 

would have been to injure Ruben Pineda, his friend and partner in the activities of 

the evening in question.” He argues that the “unintentional shooting” of Pineda 

demonstrates his lack of intent to kill. Even assuming appellant unintentionally and 

accidentally shot Pineda, that does not negate his intent to kill Almanza. As 

appellant and Pineda fled from the burning townhome with Almanza in pursuit, 

Pineda was in between appellant and Almanza. Appellant turned around and fired 

his weapon several times in Almanza’s direction. Officers recovered from the scene 

eight spent cartridge casings matching the caliber of gun that appellant was known 
15

to carry and that Pineda had seen earlier that evening. Almanza sustained a total of 

seven gunshot wounds, including fatal wounds to his head, neck, and chest. During 

the shooting, one bullet also struck Pineda in the arm. The jury reasonably could 

have inferred that Pineda sustained an accidental injury because he happened to be 

located in between appellant and Almanza when appellant intentionally shot at 

Almanza.

We conclude that, viewing the evidence in the light most favorable to the 

verdict, the State presented sufficient evidence to support appellant’s conviction.

We overrule appellant’s second issue.

Admission of Extraneous Bad Acts

In his first issue, appellant contends that the trial court erred in admitting 

evidence of several extraneous offenses and bad acts because these offenses 

constituted improper character evidence under Rule 404(b), and the prejudicial 

effect of these offenses substantially outweighed their probative value in violation 

of Rule 403.

We review a trial court’s ruling on the admissibility of extraneous-offense 

evidence for an abuse of discretion. Wilson v. State, 473 S.W.3d 889, 899 (Tex. 

App.—Houston [1st Dist.] 2016, pet. ref’d) (citing De La Paz v. State, 279 S.W.3d 

336, 343–44 (Tex. Crim. App. 2009)). We will not reverse a trial court’s ruling on 

an evidentiary matter unless the decision was “outside the zone of reasonable 
16

disagreement.” Id. at 899–900 (citing Winegarner v. State, 235 S.W.3d 787, 790 

(Tex. Crim. App. 2007)). We will not disturb the trial court’s ruling if it can be 

justified on any theory of law applicable to the ruling. Id. at 900.

Rule 404(b) prohibits the introduction of extraneous offense evidence to prove 

a person’s character or to prove that on a particular occasion the person acted in 

conformity with that character. TEX.R. EVID. 404(b)(1); Devoe v. State, 354 S.W.3d 

457, 469 (Tex. Crim. App. 2011); Wilson, 473 S.W.3d at 900. Extraneous offense 

evidence may, however, be admissible if it has relevance apart from character 

conformity. Devoe, 354 S.W.3d at 469. Such evidence may be admissible to prove, 

for example, motive, opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident. TEX.R. EVID. 404(b)(2); Devoe, 354 S.W.3d 

at 469. “Evidence of another crime, wrong, or act also may be admissible as sametransaction contextual evidence where ‘several crimes are intermixed, or blended 

with one another, or connected so that they form an indivisible criminal transaction, 

and full proof by testimony, . . . , of any one of them cannot be given without 

showing the others.’” Devoe, 354 S.W.3d at 469 (quoting Wyatt v. State, 23 S.W.3d 

18, 25 (Tex. Crim. App. 2000)). The jury is entitled to know “all relevant 

surrounding facts and circumstances of the charged offense.” Id. However, sametransaction contextual evidence is admissible “only when the offense would make 

little or no sense without also bringing in that evidence, and it is admissible ‘only to 
17

the extent that it is necessary to the jury’s understanding of the offense.’” Id.

(quoting Wyatt, 23 S.W.3d at 25).

The proponent of extraneous offense evidence must be able to explain to the 

trial court “the logical and legal rationales that support [the evidence’s] admission 

on a basis other than ‘bad character’ or propensity purpose.” De La Paz, 279 S.W.3d 

at 343. Whether an extraneous offense has relevance apart from character 

conformity is a question for the trial court and thus is reviewed for abuse of 

discretion. Devoe, 354 S.W.3d at 469 (quoting Moses, 105 S.W.3d at 627). “A trial 

court’s 404(b) ruling admitting evidence is generally within [the zone of reasonable 

disagreement] if there is evidence supporting that an extraneous transaction is 

relevant to a material, non-propensity issue.” Id. (citing Powell v. State, 63 S.W.3d 

435, 438 (Tex. Crim. App. 2001)).

Rule 403 provides that a trial court may exclude otherwise relevant evidence 

if the probative value of that evidence is substantially outweighed by a danger of 

unfair prejudice, confusion of the issues, the misleading of the jury, undue delay, or 

the needless presentation of cumulative evidence. TEX. R. EVID. 403. The Court of 

Criminal Appeals has held that a trial court, when conducting a Rule 403 analysis, 

must balance:

(1) the inherent probative force of the proffered item of evidence along 

with (2) the proponent’s need for that evidence against (3) any tendency 

of the evidence to suggest [a] decision on an improper basis, (4) any 

tendency of the evidence to confuse or distract the jury from the main 
18

issues, (5) any tendency of the evidence to be given undue weight by a 

jury that has not been equipped to evaluate the probative force of the 

evidence, and (6) the likelihood that presentation of the evidence will 

consume an inordinate amount of time or merely repeat evidence 

already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). A trial 

court’s decision not to exclude evidence, based on a finding that the danger of unfair 

prejudice does not weigh the evidence’s probative value, is entitled to deference. 

See Wilson, 473 S.W.3d at 900 (quoting Moses v. State, 105 S.W.3d 622, 627 (Tex. 

Crim. App. 2003)).

On appeal, appellant complains about the admission of several extraneous bad 

acts: testimony that appellant was known to carry a .357, that appellant had 

threatened Nieto and his family, that appellant had stolen Nieto’s gun, that appellant 

had been warned to stay off the Greenridge townhomes property, that appellant and 

Nieto had gotten into a fight at Los Cabos on the night of the incident, that appellant 

had made a threatening hand gesture imitating shooting a gun at Nieto when he left 

Los Cabos, that appellant had pointed a gun at Pineda when they first met up on the 

night of the incident, that appellant had changed into a shirt stating “snitches get 

stitches” after the incident, and that appellant possibly had taken Xanax on the night 

of the incident. Appellant argues that the prejudicial effect of this testimony 

substantially outweighed its probative value.
19

All of the evidence that appellant complains about on appeal provides 

necessary context for the jury to understand the circumstances surrounding the 

charged offense of capital murder and appellant’s actions on the night of the 

shooting. It is, therefore, admissible as same-transaction contextual evidence. See 

Devoe, 354 S.W.3d at 469; Wyatt, 23 S.W.3d at 25. Furthermore, several of the 

alleged bad acts were admissible for other purposes as well. See TEX. R. EVID.

404(b)(2) (providing that evidence may be admissible to show, among other things, 

motive, opportunity, intent, and lack of accident). The evidence of appellant’s 

relationship with Nieto—which included allegations of theft, threats, and physical 

violence—tended to show appellant’s motive for burglarizing and setting fire to 

what appellant believed to be Nieto’s home. See, e.g., Gipson v. State, 82 S.W.3d 

715, 723 (Tex. App.—Waco 2002, no pet.) (holding that evidence of prior 

altercations and violence between defendant and complainant was admissible to 

show motive and intent to commit subsequent acts of violence against complainant).

HPD Crime Scene Unit officers recovered eight spent .357 cartridge casings 

from the scene of the shooting. This case thus involves a murder in which the 

complainant sustained multiple gunshot wounds and multiple .357 spent cartridge 

casings were found at the scene. Although officers never recovered the weapon used 

in the shooting, they did recover four unfired .357 casings from the search of 

appellant’s house. The testimony concerning appellant’s carrying of a .357 and his 
20

pointing a .357 at Pineda on the night of the incident was relevant to his identity as 

the shooter and his opportunity to commit the offense. See Scott v. State, 165 S.W.3d 

27, 52 (Tex. App.—Austin 2005) (holding that evidence that around time of 

murders, defendant was in possession of handgun similar to one used in offense was 

relevant and admissible), rev’d on other grounds, 227 S.W.3d 670 (Tex. Crim. App. 

2007).

After the shooting, appellant changed into a t-shirt that stated “snitches get 

stitches.” Pineda testified that his understanding, upon seeing appellant wearing this 

t-shirt, was that he would be beaten or killed if he told anyone about the incident. 

This evidence is probative of appellant’s “consciousness of guilt,” in that it was a 

threat to Pineda to stay quiet about what he had witnessed. A defendant’s conduct 

after the commission of an offense which indicates a “consciousness of guilt” is 

admissible to prove that he committed the offense and is an exception to Rule 

404(b)’s prohibition against the admission of extraneous offenses. See Hedrick v. 

State, 473 S.W.3d 824, 830 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Ross 

v. State, 154 S.W.3d 804, 812 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). 

“[T]hreats made in an effort to suppress or destroy evidence are probative of 

consciousness of guilt.” Hedrick, 473 S.W.3d at 830; Keith v. State, 384 S.W.3d 

452, 460 (Tex. App.—Eastland 2012, pet. ref’d) (holding that defendant’s statement 

to witness “[t]hat if anybody snitched him out or got him in trouble that he would 
21

have them bumped off and they would clean up the mess” was admissible under 

Rule 404(b) as probative of consciousness of guilt).

We conclude that the trial court did not violate Rule 404(b) by admitting the 

complained-of evidence.

Appellant additionally argues that the extraneous bad acts evidence was 

“highly prejudicial” and that the evidence improperly influenced the jury. The State, 

as the proponent, had great need of this evidence, which provided context for why 

appellant was present at the Greenridge townhomes on the night of the incident and 

why he decided to vandalize a unit, which escalated to burglary, arson, and, 

ultimately, the shooting of a security guard. The evidence concerning appellant’s 

relationship with Nieto provided a motive for appellant’s actions, the evidence 

concerning appellant’s carrying of a .357 connected him to the spent .357 cartridge 

casings found at the scene, and the evidence of appellant’s threatening shirt, seen by 

Pineda, the only eyewitness to the shooting, indicated a consciousness of guilt. The 

probative force of this evidence was therefore great.

This evidence was not unfairly prejudicial. The trial court gave oral limiting 

instructions before Arriola’s testimony concerning appellant carrying a .357 and 

before Nieto’s testimony that appellant had previously stolen his gun, and the court 

included an identical instruction in the charge. The extraneous bad acts in this case 

all related to the context of the charged offense itself, and thus this evidence was 
22

unlikely to distract the jury from the issues it had to decide. None of the extraneous 

bad acts evidence had the “potential to impress the jury in an irrational way.” See 

Martinez v. State, 327 S.W.3d 727, 737 (Tex. Crim. App. 2010) (noting that Rule 

403 does not require exclusion of evidence “simply because it creates prejudice”; 

instead, “the prejudice must be ‘unfair’”). Additionally, the complained-of evidence 

was not cumulative and did not “consume an inordinate amount of time.” See 

Gigliobianco, 210 S.W.3d at 641–42.

We conclude that the trial court did not abuse its discretion by finding that the 

prejudicial effect of the complained-of evidence did not substantially outweigh its

probative value. We hold that the trial court did not violate Rule 403 by admitting 

the complained-of evidence.

We overrule appellant’s first issue.

Accomplice Witness Instruction

In his third issue, appellant contends that the trial court erred by failing to 

instruct the jury that Pineda must be considered an accomplice as a matter of law.

Code of Criminal Procedure article 38.14 provides that “[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.” TEX. CODE CRIM.

PROC. ANN. art. 38.14 (West 2005). “An accomplice is a person who participates in 

the offense before, during, or after its commission with the requisite mental state.” 
23

Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011); Delacerda v. State, 

425 S.W.3d 367, 394 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). Presence 

at the crime scene does not make a person an accomplice; instead, an accomplice 

must have “engaged in an affirmative act that promotes the commission of the 

offense that the accused committed.” Smith, 332 S.W.3d at 439. A person is not an 

accomplice if he knew about the offense and failed to disclose it or helped the 

accused conceal the offense. Id.

A witness may be an accomplice as a matter of law or as a matter of fact, and 

“[t]he evidence in each case will dictate whether an accomplice as a matter of law 

or fact instruction is required.” Id. If the witness cannot be prosecuted for the same 

offense with which the defendant is charged or prosecuted for a lesser-included 

offense, the witness is not an accomplice as a matter of law. Delacerda, 425 S.W.3d 

at 394; see also Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007) 

(stating that instructing jury that witness is accomplice as matter of law is appropriate 

“when the witness is charged with the same offense as the defendant or a lesserincluded offense or when the evidence clearly shows that the witness could have 

been so charged”). “When the evidence clearly shows (i.e., there is no doubt) that a 

witness is an accomplice as a matter of law, the trial judge must instruct the jury 

accordingly.” Smith, 332 S.W.3d at 439; Delacerda, 425 S.W.3d at 395 (“A trial 

court has no duty to instruct the jury that a witness is an accomplice witness as a 
24

matter of law ‘unless there exists no doubt that the witness is an accomplice.’”) 

(quoting Druery, 225 S.W.3d at 498). “When there is doubt as to whether a witness 

is an accomplice (i.e., the evidence is conflicting), then the trial judge may instruct 

the jury to determine a witness’s status as a fact issue.” Smith, 332 S.W.3d at 439–

40.

The Court of Criminal Appeals has held that “the conspiracy theory of party 

liability applies in the accomplice-witness context” because an accomplice is a 

person who may be charged with the same or lesser-included offense as that with 

which the defendant is charged and “a person may be charged with an offense as a 

principal, a direct party, or as a co-conspirator.” Zamora v. State, 411 S.W.3d 504, 

511 (Tex. Crim. App. 2013). Thus, “an accomplice-witness instruction is required 

when the evidence raises the question of whether a witness is an accomplice under 

a party-conspirator theory.” Id. at 512. Penal Code section 7.02(b) sets out criminal 

responsibility as a conspirator and provides, “If, in the attempt to carry out a 

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

conspirators, all conspirators are guilty of the felony actually committed, though 

having no intent to commit it, if the offense was committed in furtherance of the 

unlawful purpose and was one that should have been anticipated as a result of the 

carrying out of the conspiracy.” TEX. PENAL CODE ANN. § 7.02(b) (West 2011).
25

We review a trial court’s decision to deny a requested accomplice witness 

instruction for an abuse of discretion. Delacerda, 425 S.W.3d at 395 (citing Paredes 

v. State, 129 S.W.3d 530, 538 (Tex. Crim. App. 2004), and Nelson v. State, 297 

S.W.3d 424, 428–29 (Tex. App.—Amarillo 2009, pet. ref’d)).

Appellant requested that the trial court instruct the jury that Pineda was to be 

considered an accomplice as a matter of law. Specifically, appellant argued that 

Pineda’s “testimony where he stated he was a lookout during the arson shows he was 

a party to the arson and, therefore, he should have anticipated under the conspiracy 

statute that death could have occurred in the course of committing an arson.” The 

State pointed out that the proposed charge contained an instruction that the jury 

determine whether Pineda was an accomplice as a matter of fact and argued that this 

instruction was sufficient. The trial court agreed and denied appellant’s request. The 

charge included the following instruction:

An accomplice, as the term is here used, means anyone connected with 

the crime charged, as a party thereto, and includes all persons who are 

connected with the crime by unlawful act or omission on their part 

transpiring either before, at the time of, or after the commission of the 

offense, and whether or not they were present and participated in the 

commission of the crime. A person is criminally responsible as a party 

to an offense if the offense is committed by his own conduct, by the 

conduct of another for which he is criminally responsible, or by both. 

Mere presence alone, however, will not constitute one a party to an 

offense.

A person is criminally responsible for an offense committed by the 

conduct of another if, acting with intent to promote or assist the 

commission of the offense, he solicits, encourages, directs, aids, or 
26

attempts to aid the other person to commit the offense. The term 

“conduct” means any act or omission and its accompanying mental 

state.

If, in the attempt to carry out a conspiracy to commit one felony, 

another felony is committed by one of the conspirators, all conspirators 

are guilty of the felony actually committed, though having no intent to 

commit it, if the offense was committed in furtherance of the unlawful 

purpose and was one that should have been anticipated as a result of the 

carrying out of the conspiracy.

By the term “conspiracy” as used in these instructions, is meant an 

agreement between two or more persons with intent, that they, or one 

or more of them, engage in conduct that would constitute the offense. 

An agreement constituting a conspiracy may be inferred from acts of 

the parties.

You are instructed that a conviction cannot be had upon the testimony 

of an accomplice unless the accomplice’s testimony is corroborated by 

other evidence tending to connect the defendant with the offense 

charged, and the corroboration is not sufficient if it merely shows the 

commission of the offense, but it must tend to connect the defendant 

with its commission. 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.

Therefore, if you believe from the evidence beyond a reasonable doubt 

that an offense was committed and you further believe from the 

evidence that the witness, Ruben Pineda, was an accomplice, or you 

have a reasonable doubt whether he was or not, as that term is defined 

in the foregoing instructions, then you cannot convict the defendant 

upon the testimony of Ruben Pineda unless you further believe that 

there is other evidence in the case, outside of the testimony of Ruben 

Pineda[,] tending to connect the defendant with the offense charged in 

the indictment, and then from all the evidence you must believe beyond 

a reasonable doubt that the defendant is guilty.

Pineda testified that appellant usually carried a .357 and that appellant had 

that gun with him on the night of the incident, which he knew because appellant 
27

pointed the gun at Pineda when they first met up that evening. Pineda was present 

at Los Cabos and witnessed at least part of appellant’s fight with Nieto. He testified 

that after they were escorted from the bar, appellant came up with a plan to vandalize 

Nieto’s home by throwing a rock through a window. When they arrived at the 

Greenridge townhomes, however, they discovered, to their surprise, that Nieto’s unit 

was vacant. Appellant broke into the unit and started a fire in the bedroom while 

Pineda stood outside. Pineda then noticed the flashing lights of Almanza’s security 

vehicle through the window and shouted a warning to appellant, who was still inside 

the unit. During the ensuing chase, appellant turned around and fired his weapon 

several times, hitting Pineda in the arm and killing Almanza.

The evidence only reflects the plan between appellant and Pineda to vandalize 

the unit they thought belonged to Nieto by throwing a rock through the window. 

Criminal mischief, the offense with which the State ultimately charged Pineda, is a 

misdemeanor. Pineda did not testify that they had a plan to break into the unit or to 

set the unit on fire. Nor does the evidence show that appellant told Pineda in advance 

of his intent to start a fire. Instead, the evidence reflects that appellant made these 

decisions on his own without consulting Pineda. However, Pineda did acknowledge 

that after appellant had decided to break in and was inside the unit setting a fire, he 

shouted a warning to appellant when he saw security lights. Furthermore, although

there is no indication that appellant had communicated an intent to engage in further 
28

physical violence after his fight at Los Cabos with Nieto, Pineda did know that 

appellant had a firearm in his possession while they were at the townhomes. See

TEX. PENAL CODE ANN. § 7.02(b) (providing that co-conspirator may be criminally 

responsible for felony actually committed if “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”).

Based on the evidence presented, which is conflicting, we cannot say that the 

evidence “clearly shows,” or that there is “no doubt,” that Pineda was an accomplice 

under a law-of-parties theory or a co-conspirator theory. See Smith, 332 S.W.3d at 

439; Delacerda, 425 S.W.3d at 395. We therefore hold that the trial court properly 

instructed the jury to determine whether Pineda was an accomplice as a matter of 

fact. See Smith, 332 S.W.3d at 439–40; Jester v. State, 62 S.W.3d 851, 854 (Tex. 

App.—Texarkana 2001, pet. ref’d) (“If evidence presented by the parties is 

conflicting, the issue of whether an inculpatory witness is an accomplice is properly 

left to the jury as a fact question under instructions defining the term ‘accomplice.’ 

This is true even if the evidence shows more likely than not that the witness is an 

accomplice as a matter of law.”). Thus, the trial court did not err in refusing 

appellant’s requested instruction identifying Pineda as an accomplice as a matter of 

law.

We overrule appellant’s third issue.
29

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice 

Panel consists of Justices Jennings, Keyes, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).