### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-03-00481- CR

Ant oni o N at al J uar e z , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF HAY S COUNTY , 22ND JUDICIAL DISTRI CT NO. CR-03- 268, HO NORAB LE DON B . MO RGAN, JUDGE P RESIDING

M E M O R

A N D U M O P I N I O N Appellant Antonio J uare z challeng es his conviction by a jury for arson and sente nce of tw e nty - f i v e y e ar s ’ c o n f

i n e m e n t
. I n f

o u r i s s u e s , h e ar g u e s t h a t t h e t r i a l c o u rt e r r e d b y f a i l ing to pr ov ide an instru c tio n o n a c c omp lic e te sti mony , th a t th e a c c omp lic e te sti mony wa s in su ff

ic ie ntl y
c or ro bo rate d, and

that im pr op e r e vid e nc e wa s a dmi tte d in the punis hme nt s ta g e . We wi ll a ff ir m.
BACK GR OUND J uare z bega

n dating Rache l Galendo in January 19 9 9
. The c ouple lived tog ether from Marc h 2 00 0 unti l June 20 01
. Duri ng the re la tio ns hip , Juare z wa s je a lou s w he n G a le nd o s po ke to other men a

nd phy sically

abused G alendo. J uare z threatened to kill Galendo seve ral times during t h e r e l a t i o n s h i p . In J u n e 2 0 0 1 , J u ar e z an d G a l e n d o “ b r o k e u p ” b u tc o n t i n u e d

t o d a t e i n t e r

m i t t e n t l y.Galendo testified that she believed that J uare z would kill her and that it was the same ty pe 1 of threa t J uare z had made duringtheir re lationship. Jim F ra nk Swi nd e ll, a

c ri min a lis t and manag e r o f t he State F ir e Mars ha l A rs on L a b in 2 Austin, also testified that laboratory tests reve aled that g asoline was used as a n acc eler ant to the fire
. 2 The nig ht of J une 7, 2002, Ga lendo went to a club with a f riend; Juarez was also there with Trine Pastrano. Juarez threatened to kill Galendo a fter he s aw her danc ing w ith another man. 1 L ater , Galendo a

nd her f riend lef t the club and we nt to Galendo’s a partment. W h en they

arr ived around 1:30 a .m., Galendo saw t h at h er c ar, a white For d, was on fir e. The fire de partment ha d alre ady arr ived and wa s attempting to suppre ss the fire. G alendo’ s first thought wa s that J uare z was responsible. That nig ht, Ken B ell, fire ma rshal for the C ity

of San Mar cos, beg an his investigation of the c ause of

the fire . First, B ell noted t hat t he car “ree ked of g asoline” and that the driver ’s seat suffe red the most damag e. Attempting to rule out potential cause s for the f ire, he also observe d that the eng ine was not he avily damag ed and that the fuel pump appea red normal. Galendo a

nd others who may have had knowledg e re g ardingthe source of the fir e we re subse quently interviewe d, and laboratory

tests were conducte d. Be ll late r conclude d that someone had poured g asoline into the car and intentionally

lit the fire. 2 Pastrano testified that on the nig ht o f t h e fi re, he was ridingin J uare z’s car w hen J uare z st opped at a

g as station and put two g allons of g as in a plastic r ed g as ca n. Pastrano thoug htAlthough Pastra no g ave c onflicting testimony reg ardingwhich window wa s broken, the 3 rec ord ref lects a probable lang uag e barr ier, a nd it is clear that Pastra

no did not init ially

understand which side of the car

was the dr iver’s side a

nd which wa s the passeng er’ s side. 3 J uare z was g oing to use the g as to mow the lawn the next day
. J uare z then told P astrano that J uare z was g oing to talk to his g irlfriend. The y arr ived at Ga lendo’s apa

rtment complex, and Juarez went to an apa rtment and knoc ked on the door . No one a nswere d. J uare z then return ed t o t h e car and
remove d a tire iron f

rom the trunk and the g as ca n from his back seat. He walked up to a white For d, discerne d that all of the doors wer e locke d, and smashed the driver’ s side window with the tire iron. After J uare z poured g asoline into the ca r, he took a

box of matche s from his pocket, lit a match, a nd thr e w i t th ro ug h th e br ok e n w ind ow . Th e c ar bur st into fl a me s. Juar e z re tur ne d to his c ar a

nd tol d 3 Pastrano that he ha d done it “so she would think I don’t fu ck around, you know, show her who I
a m.” Pa str a no a lso te sti fi e d th at he was afr a id t hat Juare z wo uld

re ta liate a g a ins t hi m f

or his t e s t i m o n y. J uare z was found g uilty of arson by a jury
. See Te x. Pe n. Cod e Ann. § 2 8. 02 (We st 20 03 ). Af

te r h e a ri nge vid e nc e of

pr ior c on vic tio ns , th e c ourt

se nte nc e d h im t o tw enty -f ive y e a rs ’
c on fi ne me nt. Th is a

pp e a l f oll ow s.
DI SCU SSIO N I n four issues, Juarez argues that the trial c ourt err ed b y ref using his re quest for a

n
a c c omp lic e ins tr

uc tio n r e la te d to Pa str ano , that Pa str ano ’s a c c omp lic e te sti mony wa s in su ff ic ie ntl y4

corr oborate d, and that fa cts surroundinghis previous conviction w er e i m p ro perly admitted in the p u n i s h m en th ea ri n g.
Acc om plice instruction

I n his first issue, J uare z arg ues that he w as entitled to a jury instruction that Pastrano
wa s an a c c omp lic e . A t th e c ha rg e c on fe re nc e , Juare z’s a tto rn e y re qu e ste d “ an a c c omp lic e wi tne ss ch ar ge. T ri n e P as t ra n o h as ad m i t t edt h at h e w as t h er e. ” T h e t ri al co u rt d en i ed t h e re qu es t
. Al t h o u gh it is unclear whe ther J uare z was seeking an ins truction that Pastrano was an accomplice as a matter of law or as a question of fa ct, for pur poses of this opinion, we will consider e ach c ontention. See Pa re de s v . S tat e , 129 S.W .3d 530, 536 (Tex. Crim. App. 2004). We reviewthe trial cour t’s submissi on of jury

instructions under an a buse of discretion standa

rd. Se e W

esb ro ok v . S tat e , 29 S.W .3d 103, 122 (Tex. C ri m . App. 2000). An
a c c omp lic e pa

rt ic ipate s w itha de fe nd ant be fo re , d ur ing , o r a ft e r t

he c omm iss ion

of a c ri me and

a c ts with the require d culpable me ntal state. Paredes , 1 29 S.W. 3d a t 53 6; Kut

zn e r v . S tat e , 994 S.W .2d 180, 187 (Tex. Crim. App. 1999). The participation must involve an af firmative a ct that promoted the commission of the offe nse with which the a ccuse d is charg ed. Paredes , 129 S.W .3d at 536. A person who is me rely prese nt at the scene of the offe nse is not an ac complice. Blak e v . S tat e , 971 S
. W
. 2 d 4 5 1 , 4 5 4 (T ex . C ri m . Ap p . 1 9 9 8 ) ( ci t i n g Cre e l v . S tat e , 754 S.W .2d 205 (Tex. Crim. App. 19 88 )) . A dd iti on a lly , o ne is n ot a n a c c omp lic e fo r kn ow ing a bo ut a c ri me and

fa ili ngto d isc los e it,
or eve n conce aling it. Blake , 971 S.W .2d at 454. R ather , an accomplice as a matter of l aw is one5

who is susceptible to prosec ution for the off ense w ith which the ac cused is cha rge d or a le sser included off

ense. Paredes , 1 29 S.W. 3d a t 53 6; see Blak e , 971 S.W .2d at 455. Whether the pe rson is actually

char g ed and pr osecute d for their participatio n i s irrele vant to the deter mination of
acc omplice status—what matter s is the evidence in the rec ord. Blake , 971 S.W .2d at 454.

The trial court is unde r no duty to instruc t the jury unless there exis ts no doubt or the evidenc e cle arly

shows that a witness is an ac complice a s a matter of law. Paredes , 129 S.W .3d at 53 6. I f t he e vid e nc e pr e se nte d b y

the pa rt ie s is c on fl ic tin g and it is no t c le ar w he the r t he wi tne ss i s
an ac complice, then the trial court must leave to the jury the question of whe ther the inc ulpatory witness is an ac co m p l i ce w itness as a matter of fa ct under

instructions defining the term “ac complice.” Id
. (c i t i n g Blake , 971 S.W .2d at 455).

B e ll t e sti fi e d th a t a ft e r sp e a kin g to P a str ano , h e be lie ve d th a t Juare z wa s a su sp e c t. Pa str ano wa s r

ule d o ut a s a

su sp e c t; n o a

rr e st w arr ant w a s e ve r r e qu e ste d, and B e ll une qu ivo c a lly stated t hat he conclude d that Pastrano did not actively participate i n the s etting of the fire. I n Be ll’s opinion, Pastrano was mer ely a witness, not a suspect. J uare z argues t hat “B ell states that Pastrano admitted to being a co- defe ndant to the cr ime.” Althoug h Be ll lis ted Pastrano a s being “involved” in the arson in the arr est war rant for J uare z, at trial Be ll e x plained that he listed Pastrano “a s being inv olv e d in

the pr oc e e din g s a s th e y

we re g oi ng on , simila

r t o th e wa

y Ia m r ig ht n ow .” B e ll a lso te s ti f ie d th a t w h e n h e in te r

v ie w e d Ju ar e z, Ju ar e z d id n o t im p li c a te Pa s tr an o a s a s u spect a nd was

“ v e r y e mp h a t i c a

b o u t t h e f a c t t h at M r . P a s t r an o w a s n o t i n v o l v e d i nt h e l o s s o f

t h a tv e h i c l e . ” F i n a l l y, Be ll testified that during his investigation, no one e ver implicate d Pastrano.J uare z also arg ues that Pastrano w as an ac co m p l i ce beca use evide nce show ed he w as 4 involved in c ommunicating the threat to Galendo at the club. Howeve r, evidenc e that Pastrano wa s involved in threate ning G alendo would not re quire a n acc omplice instruction related to arson. 6 Al thoug h Pa str ano wa s p re se nt a t th e tim e of

the ars on , th e re is n o e vid e nc e to support an asse rtion that he par ticipated in the ar son. Thus, he is not an ac complice a s a matter of 4 law bec ause he is not susceptible to prosecuti o n fo r ar son. See P aredes , 129 S.W .3d at 537. Additionally , the trial cour t was under

no duty to leave the question of Pastrano’ s participation as
an ac complice a s a matter of fac t to the jury

beca use there is no conflicting evidenc e or doubt on the question of his complicity in the arson. Se e id
. We overrule J uare z’s first issue. Be cause we f

ind no evidence that Pastrano wa s an acc omplice, we ne ed not consider J uare z’s second issue, which c halleng es whe ther Pastra no’s allege d acc omplice testimony was sufficie ntly

corr oborate d.
Im proper puni shme nt evidence

I n his third and fourth issues, J uare z arg ues that the trial c ourt violated the he arsa y rule a nd the conf

rontation clause by admitting fa ctual evide nce sur rounding his previous convictions for attempted murder a

nd driving while intox icated. See Te x. R. E vid . 8 02 ; see also U. S. Co ns t. a rt
. VI . H e c ite s J

oh ns on v . S

tat e , 650 S.W .2d 784 (T ex . Crim. App. 1983), and Crawf ord v. W ashington , 541 U.S. 36 (2004), as suppor t for his ar gu m en t s . Howeve r, the Johnson decision construed a previous version of article 37.07 of t he code of criminal proce dure. See J ohnson , 650 S.W. 2d a t 79 2; se e als o Tex. Code Crim. P roc. A nn. art. 37.07 (West 1981). Af ter the Johnson decision, ar

ticle 37.07 was a

mended to spec ify

thatJ uare z does not arg ue that his testim ony was impelled by

the State’s introduction of 5 e vid e nc e that w a s o bta ine d in vio la tio n o f t

he law or that the ha

rm fu l e ff e c t of a lle g e dly imp ro pe rl y admitted evidenc e wa s not cured by the fa ct that h e soug ht to ex plain it by introducing rebutting evidenc e. Se e Le da

yv . S tat e , 983 S.W .2d 713, 719 (Tex. Crim. App. 1998).

7 evidenc e may

be off ere d by the state a

nd the def

endant a s to any

matter the c ourt deems re levant to sentenc ing, including but not lim ited to the prior cr iminal recor d of the de fe nd ant, hi s g e ne ra l r e pu ta tio n, his c ha ra c te r, an o pin ion

re g ard inghis char ac t er , the circ umstances of the offe nse for

which he is be ing tr ied, and, notwithstanding Rules 404 and 405, Te x as Rules of Evidence, any other e vidence of an extraneous crime or bad act that is shown bey ond a re asonable doubt by evidenc e to h a ve be e n c omm itt e d b y the de fend ant or f

or wh ic h h e c ou ld b e he ld c ri min a lly re sp on sib le , r e g ard le ss o f w he the r h e has pre vio us ly be e n c ha rg e d w ithor

fi na lly c on vic te d o f t

he c ri me or

a c t.
Te x. Cod e Cr im. Pr oc . A nn . a rt . 37. 07 , § 3( a )( 1) (We st Supp . 200 4- 05 ). Thus , the ve rs ion of a rt ic le 37.07 applicable at the time of Juarez’s trial demonstrate d the leg is l at u re’ s “manife st intent that evidenc e of de tails of offe nses be a dmissibl e.” Da v is v . S tat e , 9 68 S.W. 2d

36 8, 37 2 ( Te x. Cr im. App. 1998). T h e t ri al court did not violate ar ticle 37.07 or a

buse its discretion by

permitting the details of Juarez’s bad ac ts to be admitted during the punishment phase. Se e id . at 373.

F ur the rm or e , Juare z wa ive d a ny c omp la int

re g ard ingart icle 3 7. 07 or his sixth amendment r ight to conf rontation by

volunteeringthe fa cts of his prior c onvictions i n h i s own testimony . I n the punishment phase, Ju ar ez t es t i fied on dire ct examination that he had bee n
c on vic te d o f d

ri vin g wh ile int oxic a te d and a tte mpt e d mu

rd e r i n tw o s e pa

rate inc ide nts
. I n f

a c t, 5 Juar e z wa s o n p aro le fr om t he a tte mpt e d mu

rd e r c on vic tio n w he n h e c omm itt e d th e ars on in t his
case . On cross-e x amination J uare z freely admitted, without objection, that he had be en convic ted of a tte mpt e d mu

rd e r a ft e r h e sh ot a

no the r m an in

the he a d w itha

sma ll c a lib e r pi stol. He a lso8

a dmi tte d th a t th e man wa s the dr ive r of a c ar that bumpe d int o Juar e z’s br oth e r’ s c ar in a pa rk inglot ; Juar e z did

no t kn owhim

be fo re the inc ide nt. We o ve rr ule Juar e z’s thi rd

and fo ur th i ssu e s.
CO NC LU SION Havingoverr

uled J uare z’s issues, we aff irm the conviction.

__________________________________________ W. Kenneth L aw, Justi ce Be fore Chief J ustice L aw, Justi ces B . A. Smith and Pury ear Affir med Filed: Oc tober 14, 2005 Do No t Pu

bli sh