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 CO URT OF LUBBOCK COUNTY; NO. 2007-417,076; HONORABLE BRAD LEY S. UNDERWOOD, PRESIDING

Memorandum Opinion

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. Michael G. Gonzales was convicted of aggr avated assault on a public servant. In seeking a reversal of that conviction, he contends 1) the jury charge should have contained an instructi on that Adrianna Carrasco and Juan Aguilar were accomplices as a matter of law, and 2) there is legally insu fficient evidence to corroborate the testimony of those two persons. We affirm the judgment.2 Background On September 15, 2006, appellant, Juan Zuniga, his girlfr iend Carrasco, and Aguilar met at a house, obtained a white F-150 truck, traveled to the area around Memphis and 65 th Street in Lubbock and parked at an apartment complex. Appellant and Zuniga were planning to brea k into a nearby house inhabi ted by Toni Mari Luna, a drug dealer, and take a big screen television. While walking into th e area, appellant and Zuniga were observed by Officer Mark Wall, who became suspicious of their actions and stopped his vehicle, activated his spotligh t, 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 ti mes 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 s hould 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 T EX

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. 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 cr ime when he participates before, during, or3 after its commission with the appr opriate 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 bec ause 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 t hat appellant and Zuniga intended to steal an item from Luna, they were par ties 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 ni ght 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 s he “panicked” when she heard gunshots, and Aguilar testified that he was “scared.” Comp licity 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 complic ity in that offense). However, appellant argues that a co-c onspirator is an accomplice and liable under §7.02 of the Penal Code. That section provides: “If, in the attempt to carry out a4 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 wa s committed in furtherance of the unlawful purpose and was one that should have been anticipated as a re sult of the carrying out of the conspiracy.” T EX

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. §7.02(b) (Vernon 2003). Assuming that these four persons were co-conspirators, there is still no evidenc e that they ever discussed the use of guns or any other kind of force or t hat 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) (evi dence 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 Zuni ga 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 reasonabl y interpreted as indicating that the witness unwittingly helped the de fendant to commit the crime, a fact question existed as to whether he was an accomplice). Sufficiency of the Evidence Because the jury could have conclud ed that Carrasco and Aguilar were not accomplices, their testimony tended to connect appellant to the crime by his presence in5 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 guns hots. Nevertheless, there was additional evidence, apart from that of Carrasco, A guilar, and Zuniga that tended to connect appellant to the offense including evidence that 1) Wall picked appella nt’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 ja il testified that when he asked appellant if he was in jail for shooting at police, appellant re sponded, “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 Martin ez knew and that was the make of one set of shell casings found at the scene, 4) appellant to ld Martinez that he had been going to rob Luna and “that a cop had pu lled 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 t he accused to the commissi on of the offense. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Cr im. App. 2007). The evidence we have described here satisfies the requ irement that it tend to connec t appellant to the charged offense and, because it does so, that evi dence, 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 def endant 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 evidenc e tending to connect the defendant with the offense. T EX

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. art. 38.075(a) (Vernon Supp. 2010).6 Accordingly, we overrule appellant ’s issues and affirm the judgment.

Brian Quinn Chief Justice Do not publish.