### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00044- CR

P aul Rebollos o, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 390 TH JUDICI AL DISTRICT NO. D-1 -DC- 10- 2040 99, TH E H ONO RAB LE JULIE H . K OCUREK , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Paul Rebolloso of three counts of ag g rava ted robber y . See
Tex. Pena l Code § 29.03(a) (2). The jury found the enhanc ement para g raph alleg ing a prior felony conviction to be true and, pursuant to the repe at offe nder punishment pr ovision of the Penal Code, assessed a

ppellant’s punishment at confine ment for 35 y ear s in the Texas D epar tment of Criminal
J ustice for eac h count. See id. § 12.42(c) (1). The trial court order ed t h e s en t en ce s to run 1

concur rently

. On appea l, appellant complains about err or in the jury char g e. Finding no reve rsible

err or, we aff

irm the judg ments of conviction.

Pursuant to the repe at offe nder provision of the Penal Code, the final felony conviction 1 used for enhanc ement was an adjudication by a j u v en ile court under section 54.03 of the Family Code that appellant had engaged in delinquent conduct constituting a felony offe nse for which he was c ommitt ed to the Te x as Youth Commissi on. See Tex. P enal Code § 12.42( f).BACK GR OUND The night of J uly 11, 2010, appellant and C ar l o s Z avala robbed three employ ees working at the L os J aliscienses restaur ant in A ustin. They parke d near by in Z avala ’s pickup truck and enter ed the restaur ant with white cloths cover ing their fac es. Appellant, wea ring a white hoodie, pointed a g un at the employ ees and y elled at them in Spanish not to move or call the police. Z avala ,

wea ring a black hoodie, g rabbe d the cash reg ister o ff o f the counter and ran out of the restaur ant. Appellant then f

ollowed.
As they fled the restaur ant, a car beg an to follow them. Appell an t approa ched the front of the car and pointed his g un at the driver. As the men then beg an making their way back to
Z avala ’s truck, appellant fired sever al shots in the air in the direc tion of the car . When they rea ched 2
the truck, Z avala put the cash reg ister in the back of the truck and the two drove awa y . As they drove off, Z avala

hit the back of

the ca r that had be en following them. The c ar ke pt driving, a nd Z avala hit him ag ain from behind. The impact cause d the car to spin and strike another car that was stopped
at a red light. Z avala ’s t ruck blew a tire and hit a pole. Howeve r, the truck was still opera tional.
Z avala drove the truck to a ne arby apar tment complex.
A t th e a partment complex, Z avala and appellant g ot out of the truck. Appellant tal k e d
to some of the residents who, noticing the damag ed condition of the truck as it enter ed the complex parking lot, approa ched to investiga te. Soon there afte r, appellant and Z avala fled the apar tment complex, jumping the fenc e when they saw police car s enter the complex. The police pursued the

I nitially , on exit ing the res t au ra n t , Zavala and appellant fled in the oppos ite direc tion of 2 wher e the truc k was pa

rked. 2men and both w ere appre hended. Appellant was discove red hiding in the bed of a pickup truck in

a near by hotel parking lot. Z avala was discovere d hiding in a near by dumpster. Both wer e arr ested that night. Subs eq u ently , they wer e both char g ed by indictment with three counts of ag g rava ted robber y with a dea dly

wea pon. 3

JURY INSTRUCTION
I n the abstrac t portion of the g uilt-innocence jury char g e, the trial court instructed the jury about the ac complice- witness rule a s follows:

A conviction cannot be had upon the testimony of an acc omplice unless corr oborate d by other evidenc e tending to connec t the defe ndant with the offe nse committed; and the corr oboration is not sufficie nt if it mere ly shows the commission of the offe nse.

See Tex. Code Crim. Proc. art. 38.14. I n four points of err or on appea l, appellant complains about the above instruction and arg ues that he suffe red “some harm” as a result of the trial court’s failure to properly

instruct the jury

about his co-de fenda

nt’s testimony

as an a ccomplice witness.
We revie w alleg ed jury -cha rg e err or in two steps: first, we deter mine whether err or exis ts; if so, we then evalua te whether sufficie nt harm resulted from the err or to require reve rsal. Kirsch v. State , 357 S.W .3d 645, 649 (Tex. Crim. App. 2012); Ngo v. State , 175 S.W .3d 738, 743–44 (Tex. Crim. App. 2005); Swearingen v. State , 270 S.W .3d 804 , 8 0 8 (T ex . App.—Austin 2008, pet. re f’d)

.

Eac h count named a

differ ent re staurant e mploy ee a s the victim. 3 3I n his first point of err or, appellant asser ts that t h e trial court err ed in failing to i n s t ru ct t h e jury that Z avala was an acc omplice as a matter of law. I f a prosec ution witness is an

acc omplice as a matter of law, the trial court is under a duty to instruct the jury acc ording ly

. Herron

v. State , 86 S

. W

. 3d 621, 631 (Tex. Crim. App. 2002); see Zamora v. State , 411 S.W .3d 504, 510 (Tex. Crim. App. 2013). The failure to do so is error

. Herron , 86 S.W .3d at 631. At trial, Z avala testified on behalf of the State. I t i s undisputed that Z avala , who had char g es pending ag ainst him for his participa tion in the crime, is an acco m p l i ce as a m at ter of law. See Smith v. State , 332 S

. W .3d 425, 439 (Tex. Crim. App. 2011) (witness indicted for same offe nse as acc used is

acc omplice as matter

of law) ; Druery v. State , 225 S.W .3d 491, 498 (Tex. Crim. App. 2007) (“A n

acc omplice is a person who participa tes in the offe nse befor e, during , or afte r its commission with the requisite mental state.”)

. Her e, the trial court failed to inform the jury t h at Zav ala was an

acc omplice as a matter of law. We ag ree with appellant that the omission of such an instruction

was e rror . I n his rema ining points of err or, appellant contends that the acc omplice-witness instruction g iven in the char g e was incomplete and inadequa te. I f a witness is a n acc omplice as a 4
matter of law, the trial court is require d to provide an acc omplice-witness instruction to the jury that

Appellant asser

ts that the acc omplice-witness instruction was incomplete and inadequa te 4 in thr ee “cr itical and mandatory respe cts” beca use it failed to instruct the jury that “(1) it could not convict on the basis of Z avala ’s testimony unl es s the jury believed it was true; (2) it could not convict on the ba sis of Z avala ’s testimony unless it connecte d [appellant] t o the offe nses cha rg ed; and (3) even if the j u ry fo u n d Z avala ’s testimony was truthful and connec ted [appellant] to the offe nses, it could only convict in the event there was other testimony corro b o rative of Z avala ’s testimony which tended to c onnect [appellant] with the offe nses cha rg ed.” See Campbell v. State , 123 S.W . 583, 584 (Tex. Crim. App. 1909). 4informs the jury that it cannot use the acc omplice’s testimony to convict the acc used unless there

also exis ts some non-ac complice e vidence tending to connec t the acc used to the off ense. Herron , 86 S.W .3d at 631–32. Contrary to appellant’ s asser tions, howeve r, there is no mandated instruction
or par ticular lang uag e re quired in the instruction. 5
The purpose of the acc omplice-witness instruction is to remind the jury that it cannot

use the acc omplice’s testimony to convict the defe ndant unless there also ex i s t s s o m e

non-ac complice testimony ty ing the defe ndant to the offe nse. Cocke v. State , 201 S.W .3d 744, 747 (Tex. Crim. App. 2006) (citing Herron , 86 S.W .3d at 632). Howeve r, whil e there is no particula r lang uag e require d, cer

tain instructions have been deeme d nece ssary to eff ectua te the purpose of the instruction. The inst ruction m ust identify an accomplice as a matter o f l aw o r as a matter of fact, explain the definition of an acc omplice, and set forth the statutory corr oboration require ment—the exis tence of some non-ac complice evidenc e tending to connec t the acc used to the offe nse. See
Z a mo r a , 4 1 1 S

. W.3d at 510; see also Holladay v. State , 709 S.W .2d 194, 198 (Tex. Crim. App. 1986) (noting that when provisions of article 38.14 and its precur sors wer e implicated, instruction

wa s h eld sufficie nt if it: (1) define d term acc omplice; (2) g ave statutory prohibition ag ains t conviction on uncorr oborate d acc omplice testimony ; (3) s tated that corr oboration must tend to

connec t acc used with commission of offe nse; and (4) applied law to fac t s o f case ). Her e, as

Rely ing on a 1909 Court of Criminal Appea ls case , Campbell v. State , appellant asser ts that 5 the trial court’s failure here to g ive cer tain instructions g iven in that case “is err or under Campbell .” Howeve r, while the Campbell court sug g ested the instruction appellant relies on “should be g iven” and “appr oved [i t] as a corr ect char g e,” it is not a mandatory instruction. See Campbell , 123 S.W

. at 584 (providing approve d jury instructio n f o r a c c o mp li c e - w it

n e s s te stimony but also approving jury instructions “on this subject” in other c ases de cided that ter m). 5previously discussed, the trial court’s instruction did not identify Z avala as an acc omplice as a matter

o f law. Also, while the instruction did set forth the statutory require ment of non -a cc o m p l i ce evidenc e tending to connec t appellant to the offe nse, it fa i l ed to explain or define the term “ac complice.” Acc ording ly , althoug h we reje ct appellant’ s contention that the char g e was err oneous beca use it lacke d the specific Campbell instructions, we conclude that the acc omplice-witness instruction give n was incomplete

.

We must now asce rtain whether the err or in the ju ry char g e rela ting to the

acc omplice-witness instruction require s reve rsal. The deg ree of harm require d for reve rsal depends

on whether the jury -cha

rg e err or wa s p re s erved in the trial court. I f the appellant objected to the

err or at trial, reve rsal is requir ed i f the err or “is calc ulated to injure the rig hts of the defe ndant,” which has been define d to me an that there is “some harm.” Barrios v. State , 283 S.W .3d 348, 350 (Tex. Crim. App. 2009) (quoting Almanza v. Stat e , 686 S.W .2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’ g )). I n contra st, if the appellant did not object at trial, the err or must be “funda mental,” and reve rsal is require d only if the err or was so eg reg ious and cre ated such harm that the defe ndant “has not ha d a fa ir and impartial tria l.” Id. After g iving both side s an opportunity to revie w the court’s char g e, the following occur red during the cha

rg e conf ere nce:

THE COURT: L et the re cord r efle ct the def endant is pre sent. Speaking on the State’s b eh alf, have y ou all had enoug h time to revie w the cha rg e?
PROS ECUTOR: We have, Your Honor. The Court provided an advanc ed copy of it y esterda

y , so the State has had an adequa te time to revie w t h e ch ar ge and make sug g estions.

6THE COURT: Have y ou had a sufficient a mount of time to review the c harg e and make a ny objections?
PROS ECUTOR: Yes, Your H onor. THE COURT: Okay . Def ense?
DEF ENSE COUNSEL : I have, J udg e, but I haven’ t taken advanta g e of the time the Court has provided me.
THE C OURT: I will tell y ou this: I m ad e t h e chang e that y ou reque sted. I added accom plice, Section 38.14 of the Code of Criminal Procedur e, testimony of an acc omplice. That wa s added.
DEF ENSE COUNSEL : Thank y ou, J udg e. J udg e, I do have an o b

j ec t i o n and reque st for -- an omission reque st or addition. We have a mere prese nce instruction on this case which say s mere prese nce alone will not co n s t i t u t e one a party to the offe nse. I would sug g est, J udg e, that g iven t h e nature of t he affirmative acts t hat we have to add langua g e that basica lly knowledg e -- failure to disclose or even conce aling the exis tence of the crime will not rende r one a party

. And the case law I would cite to the Court, which unfortunate ly I have now misplaced was from Medina versus S tate. I believe i t ’s 7 S.W .2d 633, w h ic h d is c u s s e d b a s ic ally an acc omplice witness, what makes an acc omplice witn e s s , but there is case law out there wh ich say s an acc omplice witness is a party

. And, th er ef ore, my position would be that the mere prese nce instruction does not adequately

inform the jury

the t rue and corr ect scope of what will -- what pre sence

-- wh at conduct only constitutes mere prese nce, J udg e. There fore , they are inadequa tely

advised a s to this i nstruction.
PROS ECUTOR: J udg e, I think that would be an unfair comment on the weig ht of the evidenc e, and f

rankly , I think we ar e at the point with the wa y the evidenc e has play ed out, I think it’s even g ener ous for them to be g etting that instruction beca use there has been no evidenc e to indicate there i s an y third person or fourth or fifth person involved in this case

. DEF ENSE COUNSEL : Well, J udg e, there will be once the DNA [si c] prese nts their DNA, the c onclusion of their e vidence , the DNA tha t was re cover ed. THE COURT: Okay . That re quest is denied.
DEF ENSE COUNSEL : Yes, ma’a m.

7THE COURT: Any thing e lse?
DEF ENSE COUNSEL : Not that I ’ve se en, Judge.
Thus, appar ently during an off- the-re cord char g e confe renc e, appellant reque sted s o me ty pe of instruction rela ting to the acc omplice-witness rule. Appellant asser ts that his off- the-re cord reque st suffice d to preser

ve er ror. We disag ree . The trial judge indicated that she “ma d e the chang e [appellant] reque sted.” As no instruction conce rning Z avala ’s status as an acc omplice as a matter o f l aw appea rs in the court’s char g e, appellant appar ently did not reque st such an instruction during the off- the-re cord

conver sation. Appellant maintains that his “re quest for a char g e on the acc omplice witness rule was sufficie nt to put the court on notice that the jury should h av e been instructed Z avala was an

acc omplice as a matter of law.” Howeve r, the purpose of prese rving jury char g e err or by asser ting either an objection or a reque sted char g e, see Tex. Code Crim. Proc. arts. 36.14, 36.15, is to enable

a trial judge to know in wha t re s p ec t a d efe ndant reg ards the char g e to be defe ctive and to aff ord the judge an opportunity to corr ect it befor e rea ding the char g e to the ju ry . Brown

v. State , 716 S.W .2d 939, 9 4 3 (T ex . C ri m. App. 1986); Hall v. State , No. 12-11-00260- CR,
2012 WL 1 6 2 3465, at *1 (Tex. App.—Ty ler May 9, 2012, no pet.) (mem. op., not desig nated for publication); Skillern v. State , 890 S.W .2d 849, 868 (Tex. App.—Austin 1994, pet. ref ’d). Her e, in addition to his appar ent failure to articula te that he wanted an i nstruction that Z avala was an “ac complice as a matter of law” during the off- the-re cord conver sation, appellant did not object or

re q u est further instruction about acc omplice testimony afte r the trial court added his reque ste d instruction to the char g e. I n fac t, appellant thanked the judge for including his reque sted instruction.

8Nor d i d appellant complain that the acc omplice-witness instruction g iven was incomplete or

inadequa te, as he does now on appea l. T h e co m m ents of the trial judge during the char g e 6
confe re n ce re fl ect that she believed the chang es she made in the jury char g e in response to appellant’ s reque sted instruction adequately addre ssed his complaint about the omission of the law
reg arding the acc omplice-witness rule, and appellant g ave no indication otherwise. Nothing in the

rec ord sug g ests that the trial court was awa re that ap p el l ant found the included instruction on the

acc omplice-witness testimony to be defic ient. C er t ai n l y , nothing in the rec ord demonstrates that appellant reque sted, but the trial court ref used, an instruction that Z avala was an acc omplice as a matter of la

w or the spe cific Campbell instructions about which appe llant now complains.
Ba sed on the rec o rd b efore us—the appar ently g ener al nature of appellant’ s off- the-re cord reque st for an acc omplice-witness instruction and the lack of any attempt by appellant
to further object or clar ify the issue for the trial judge durin g t h e ch ar ge conferenc e afte r the
reque sted instruction w a s in c lu d e d —we cannot conclude that the trial judge was awa re of appellant’ s desire for an instruction on Z avala ’s s tatus as an acc omplice as a matter of l aw or the i nstructions
g iven in Campbell

. Fur

thermore , the rec ord ref

lects that appellant rec eived what he asked for. Thus,

we hold that appellant did not prese rve t h e j u ry -charg e err or at trial. Acc ording ly , reve rsal is require d only

if appe llant suffer ed eg reg ious harm.

Although appellant did asser t that “[the jury is] inadequa tely advised about this instruction” 6 duri n g the char g e confe renc e, the inadequa te instruction complained- of conce rned the “mer e prese nce” instruction of party liability : “the mere prese nce instruction doe s not a dequate ly inform the jury the true a nd corr ect sc ope of w hat . . . conduc t only constitutes mere pr esenc e[.] ” 9The acc omplice-witness instruction info rm s the jury that it cannot use the

acc omplice-witness testimony unless there also exis ts some non-ac complice evidenc e connec ting the defe ndant to the offe nse. Herron , 86 S.W .3d at 632. There fore , non-ac complice evidenc e can rende r harmless a failure to submit an ac complice- witness instruction by fulfilling the purpose the instruction is meant to serve . Id. Under the eg reg ious harm standard, the omission of an acc omplice witness instruction is g ener ally harmless unless the corr oborating (non-a ccomplice ) evidenc e is “so unconvincing in fac t as to rende r the State’s overa ll case for conviction clea rly and signific antly less
p er s uasive.” Id. (quoting Saunders v. State , 817 S.W .2d 688, 692 (Tex. Crim. App. 1991)); s ee Cas a n o va v. State , 383 S.W .3d 530, 534 (Tex. Crim. App. 2012). Her e, the jury hear d ample

non-ac complice e vidence that tended to conne ct appe llant to the L os J aliscienses r obbery

.

First, appellant’ s g irlfriend at the time of the robber y testified that she was with appellant at the time he acquir ed a g un (a revolve r, the same ty pe of g un used in the robber y ) and that he told he r about his pla

ns to r ob a Mexi can restaur ant. Also, she rec eived a communication from appellant on her My Space pag e jus t afte r t he rob b er y i n which he made incriminating statements,

ex p re s s i n g that he had “fuc ked up” and was g oing to jail for a long time. I n addition, all t h re e
restaur ant employ ees identified two men as the robber s and all three consistently descr ibed the one

wea ring the white hoodie as the g unman. The night of the robber y , police rec overe d a white hoodie from the apar

tment complex near Z avala ’s truck. Appellant could not be excluded as a contributor to the DNA pr ofile mix ture re cover ed fr om the hoodie.

Fur ther, appellant was seen running with a g un in the vicinity of the restaur ant along with s o me o n e c a

rry ing a cash reg ister immediately afte r the robber y . I n particula

r, Martin Be lmontes

10was the driver of the car that beg an following appellant and Z avala as they ran from the restaur ant.

He observe d two men running , one with a cash reg ister and one with a g un. The man with the g un
approa ched the front of Be lmontes’s car and pointed the g un direc tly at him. Be lmontes identified appellant as the man who pointed the g un at him (and fired sever al shots in the car ’s direc tion) later that night a t the scene and ag ain during his testimony at trial.
I n addition, evidenc e linked appellant to the truck wher e the stolen cash reg ister was found. Residents at t he apartment complex saw appellant with Z avala , exit ing t h e passeng er side of the damag ed truck immediately afte r the robber y . Also, appellant’ s DNA and fing erpr ints we re found on the pa sseng er side door of the truc k. Finally , when the police appre hended appellant, an office r questioned him about the
g un used in the robber

y . After initially ly ing about its location (that it was under the seat in Z avala ’s truck), appellant disclosed the prec ise location of the g un—hidden next to a building at the apar tment complex about 30 fee t f

rom Z avala ’s truck. The g un had been taken apar t and sever al piece s wer e missing. When he was arr ested, appellant had g un parts in his pocket that matched the missing parts of the g un. Moreove r, appe llant’s DNA wa s on the g rips of the g un.

The non-ac complice testimony in this case is n o t s o unconvincing as to rende r the
State’s case clea

rly and signific antly less persua sive. See Casanova , 383 S.W .3d at 539–40 (“[A]s the corr oborating evidence gai n s i n s treng th to the point that it become s implausible that a jury would fail to find that it tends to connec t the acc used to the commission of the char g ed offe nse, then

a revie wing court may safe ly conclude that the only resultant harm is purely theore tical and that there is no occa sion to reve rse the conviction, even in the fac e of an objection, since the jury would almost

11cer

tainly have found that the acc omplice witness’s testimony was corr oborate d had it been proper ly instructed that it must do so in orde r to c onvict.”). We f ind tha t a ppellant did not suffe r eg reg ious harm from the lack of a comp l et e accomplice-w itness instruction. Acc ording ly , we overr ule appellant’ s four points of er ror.

CONCLUSION Concluding that the err or in the jury char g e was harmless, we aff irm the trial court’s judgme nts of conviction.

__________________________________________ Melissa Goodwin, Jus tice
Be fore Chief J ustice Jones, J ustices Rose and Goodw in Affir med Filed: May

8, 2014 Do Not Publish

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