NO. 07-10-0175-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL D 

APRIL 7, 2011 

MICHAEL G. GONZALES, 

 Appellant 

v. 

THE STATE OF TEXAS, 

 Appellee 

_____________________________ 

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY; 

NO. 2007-417,076; HONORABLE BRADLEY S. UNDERWOOD, PRESIDING 

Memorandum Opinion 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

 Michael G. Gonzales was convicted of aggravated assault on a public servant. 

In seeking a reversal of that conviction, he contends 1) the jury charge should have 

contained an instruction that Adrianna Carrasco and Juan Aguilar were accomplices as 

a matter of law, and 2) there is legally insufficient evidence to corroborate the testimony 

of those two persons. We affirm the judgment. 

 
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Background 

On September 15, 2006, appellant, Juan Zuniga, his girlfriend Carrasco, and 

Aguilar met at a house, obtained a white F-150 truck, traveled to the area around 

Memphis and 65th Street in Lubbock and parked at an apartment complex. Appellant 

and Zuniga were planning to break into a nearby house inhabited by Toni Mari Luna, a 

drug dealer, and take a big screen television. While walking into the area, appellant and 

Zuniga were observed by Officer Mark Wall, who became suspicious of their actions 

and stopped his vehicle, activated his spotlight, and prepared to get out of his car. He 

then saw one of the men reach into his waistband and begin firing a gun at the vehicle. 

The police car was struck multiple times before the two men ran away. 

 When Carrasco and Aguilar heard gunshots, they initially drove the truck away. 

After circling the block, they returned to the apartment complex in case appellant and 

Zuniga came back. Appellant soon returned to the truck, got in the driver’s seat, and 

drove off. Zuniga called appellant on his phone in a few minutes and later met the 

others back at the house where they had obtained the truck. 

Issue 1 – Accomplices as a Matter of Law 

 The trial court left it to the jury to decide whether Carrasco and Aguilar were 

accomplices, but appellant argues the court should have instructed the jury that they 

were accomplices as a matter of law and that it could not convict him based on their 

uncorroborated testimony. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005) 

(stating that a conviction may not rest upon the testimony of an accomplice unless that 

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

offense). A person is an accomplice to a crime when he participates before, during, or 
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after its commission with the appropriate mental state. Paredes v. State, 129 S.W.3d 

530, 536 (Tex. Crim. App. 2004). He does not become an accomplice merely because 

he is present at the scene of a crime or because he has knowledge of a crime but fails 

to disclose it or conceals it. Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 

1998). He must engage in an affirmative act or omission to promote the commission of 

the offense. Id. Furthermore, unless the evidence clearly shows that the witness was 

an accomplice as a matter of law, the decision must be left to the jury. Cocke v. State, 

201 S.W.3d 744, 747-48 (Tex. Crim. App. 2006). 

 Appellant assumes that because Carrasco and Aguilar knew that appellant and 

Zuniga intended to steal an item from Luna, they were parties to the offense of 

aggravated assault on a police officer. Yet, nothing in the record shows that either 

knew that appellant and Zuniga were armed with weapons that night or that they 

intended to use them against a police officer. Aguilar testified that he did not know that 

there would be any shooting. Further, Carrasco stated she “panicked” when she heard 

gunshots, and Aguilar testified that he was “scared.” Complicity in the commission of 

another offense apart from the charged offense does not make the testimony that of an 

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

Carraway v. State, 550 S.W.2d 699, 702 (Tex. Crim. App. 1977) (stating that the mere 

fact a witness had complicity in the commission of other offenses does not make his 

testimony that of an accomplice for the offense for which the accused is on trial if there 

is no showing of his complicity in that offense). 

 However, appellant argues that a co-conspirator is an accomplice and liable 

under §7.02 of the Penal Code. That section provides: “If, in the attempt to carry out a 
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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) (Vernon 2003). Assuming that 

these four persons were co-conspirators, there is still no evidence that they ever 

discussed the use of guns or any other kind of force or that Carrasco and Aguilar knew 

that the other two men were carrying guns. See Davis v. State, 276 S.W.3d 491, 495 

(Tex. App.–Waco 2008, pet. ref’d) (evidence that the defendant knew his coconspirators might use guns in the course of a robbery can be sufficient to demonstrate 

that the defendant should have anticipated the possibility of murder occurring). Aguilar 

testified that appellant and Zuniga left the pickup to see if anyone was at home at the 

residence from which they intended to steal. Thus, there is some question as to 

whether the burglary would have even taken place unless that house was unoccupied. 

At most, there is a fact question as to what Carrasco and Aguilar knew and their intent. 

Therefore, the court acted appropriately in submitting the issue to the jury. See 

Martinez v. State, 252 S.W.3d 649, 652 (Tex. App.–Amarillo 2008, pet. ref’d) (stating 

that when the circumstances could be reasonably interpreted as indicating that the 

witness unwittingly helped the defendant to commit the crime, a fact question existed as 

to whether he was an accomplice). 

Sufficiency of the Evidence 

Because the jury could have concluded that Carrasco and Aguilar were not 

accomplices, their testimony tended to connect appellant to the crime by his presence in 
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the area in dark clothing as described by Officer Wall, the gunshots occurring shortly 

after appellant left the truck where Carrasco and Aguilar remained, and the return of 

appellant to the vehicle shortly after the gunshots. Nevertheless, there was additional 

evidence, apart from that of Carrasco, Aguilar, and Zuniga that tended to connect 

appellant to the offense including evidence that 1) Wall picked appellant’s picture out of 

a photo line-up and stated he was 80% sure that he was one of the persons who fired at 

him, 2) a trustee at the jail testified that when he asked appellant if he was in jail for 

shooting at police, appellant responded, “well, I wasn’t trying to kill anybody; I was just 

trying to get him to stop following us,”1

 3) Eric Martinez stated that appellant sold a .40 

caliber gun to someone Martinez knew and that was the make of one set of shell 

casings found at the scene, 4) appellant told Martinez that he had been going to rob 

Luna and “that a cop had pulled up and they fired,” and 5) appellant told Martinez he 

tripped over a hill when running away from the officer and such a hill was located in that 

area. Evidence tending to connect one to the charged offense need not be sufficient 

itself to establish guilt nor directly link the accused to the commission of the offense. 

Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The evidence we have 

described here satisfies the requirement that it tend to connect appellant to the charged 

offense and, because it does so, that evidence, as well as the testimony of the 

accomplices, is legally sufficient to sustain the conviction. 

 

 1

Although not raised as an issue on appeal, a defendant may not be convicted of an offense on 

the testimony of a person to whom the defendant made a statement against the defendant’s interest 

during a time when the person was imprisoned in the same correctional facility as the defendant unless 

corroborated by other evidence tending to connect the defendant with the offense. TEX. CODE CRIM.

PROC. ANN. art. 38.075(a) (Vernon Supp. 2010). 
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Accordingly, we overrule appellant’s issues and affirm the judgment. 

 Brian Quinn 

 Chief Justice 

Do not publish.