Opinion filed June 13, 2013

In The

Eleventh Court of Appeals __________

No. 11-11-00197-CR

__________

BILLY WAYNE HAYNES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 161st District Court

Ector County, Texas

Trial Court Cause No. B-35,839

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

The jury convicted Billy Wayne Haynes of murder and of engaging in 

organized criminal activity. The jury assessed his punishment at life imprisonment 

and a $10,000 fine on the murder charge and confinement for fifty years and a 

$10,000 fine on the organized criminal activity charge. The trial court sentenced 

him in accordance with the jury’s verdict. We affirm.
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I. Trial Evidence

Appellant was the president of Aryan Circle, a white supremacist street 

gang. On the night that the offenses made the subject of this appeal occurred, 

Appellant, along with eight others—many of whom were Aryan Circle members—

went to Dwain Barina’s house. They intended to retaliate for a fight that occurred 

earlier that night between some of their Aryan “brothers” and others who were not 

members of their gang. Appellant was accompanied by Aryan Circle members

Summer Wilkins, George Scott, Hannah Fierros, Greta Caldwell, Kevin Jackson 

and David Callaway. Kenneth Griffin and Horace Chunn worked on Jackson’s oil

field crew and were with Appellant and the others, but were not Aryan Circle 

members.

Before the group went to Barina’s house, Jackson called Tracy Roupp, the 

father of one of Fierros’s children, and told Roupp that he would “suffer the 

consequences” if he did not agree to fight. Roupp and Fierros were estranged, but 

continued to live together and raise the children. Fierros and gang member Scott 

were dating at the time. When Roupp declined the fight, Fierros led Appellant and 

the other gang members to Barina’s house in search of Roupp because she had 

been there several times. She rode in Wilkins’s GMC Yukon with Appellant,

Scott, and Caldwell. Jackson, Callaway, Griffin, and Chunn followed in a second 

car.

Meanwhile, Roupp, Barina, and Rey Valdez were waiting outside Barina’s 

house with a shotgun and a handgun because they expected trouble after Jackson’s 

phone call to Roupp. When Appellant and the others arrived, Barina’s wife and 

daughter were also outside Barina’s house; both groups yelled at each other. As 

Appellant’s group exited their vehicles and approached a fence that enclosed 

Barina’s yard, Valdez fired a warning shot into the air. Everyone scattered. Roupp 

then fired his shotgun at the ground.
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Wilkins, Fierros, and Caldwell drove away; Callaway drove off in the other 

car. Appellant, Scott, Jackson, Chunn, and Griffin ran across the street and hid 

behind a trailer house. Appellant had a silver .380 pistol with him and was the 

only one in his group who had been seen with a gun. Appellant fired several shots 

from the .380 toward the silhouettes in front of Barina’s home. Appellant and 

those who were still with him ran to their vehicles and fled to Wilkins’s aunt’s 

home, where Appellant and Wilkins had been living. Appellant told the group that 

he thought he “got one.”

Roupp, Barina, and Valdez went inside the house and told everyone to get 

on the ground. Valdez said that he had been hit, so Barina’s daughter called 9-1-1.

But it was an hour before paramedics arrived as police worked to secure the safety 

of the scene, and he died. Witnesses told police that they had recognized Fierros as 

being one of the people at the scene. Police questioned her. The next morning, 

police arrested Scott.

Appellant “got word” that police officers were planning to search Wilkins’s 

aunt’s house, so he put his silver .380 pistol into a black trash bag and placed it in 

the dumpster behind the house. Caldwell and Nathan Truex, another Aryan Circle 

“brother,” retrieved the black trash bag from the dumpster. Caldwell then showed 

Truex how to take the gun apart and clean it off. Later, Jennifer McWilliams and 

Truex took the gun to McWilliams’s home and tried to burn it. Because they were 

unsuccessful in their attempt to burn the pistol, they threw it into a pond behind a 

local business.

Appellant, Wilkins, Fierros, Scott, Caldwell, Jackson, and Callaway were 

arrested for engaging in organized criminal activity. Griffin and Chunn were never 

formally charged, however, because they were not Aryan Circle members. The 

grand jury also declined to return an indictment against Callaway, Caldwell, and 

Fierros. The State dropped the charges against Wilkins and Jackson in return for 
4

their testimony. The State also reduced the charges against Scott for his testimony. 

Each and every person who went to Barina’s home that night with Appellant 

testified against him.

II. Issues Presented

Appellant presents five issues on appeal. In his second and third issues, 

Appellant complains about the trial court’s decision to allow witnesses to tell the 

jury about three out-of-court statements he made while in jail awaiting trial.

Appellant’s first, fourth and fifth issues turn on the sufficiency of the nonaccomplice testimony to corroborate the accomplice witnesses.

III. Analysis

A. Issues Two and Three: Appellant’s Three Out-of Court Statements

Appellant argues in his second issue that the trial court erred when it 

permitted Micah May to testify about two statements that Appellant made to May 

while they were in jail before the trial. Appellant complains in his third issue that 

the trial court allowed Marcela McKinney to tell the jury about a different 

statement Appellant made in jail. Appellant contends that all three statements 

violate Texas Rules of Evidence 404(b) and 403. We review a trial court’s 

decision to admit evidence for an abuse of discretion. Page v. State, 137 S.W.3d 

75, 78 (Tex. Crim. App. 2004). A trial court abuses its discretion when it acts 

“without reference to any guiding rules and principles.” Montgomery v. State, 810 

S.W.2d 372, 380 (Tex. Crim. App. 1990). We will not disturb the trial court’s 

decision to admit evidence if the evidence was admissible under any theory of 

law. Sewell v. State, 629 S.W.2d 42, 45 (Tex. Crim. App. [Panel Op.] 1982). The 

trial court has great discretion in its evidentiary decisions, and we defer to the trial 

court because it “is in a superior position to evaluate the impact of the evidence.” 

Montgomery, 810 S.W.2d at 379.
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1. Appellant’s Statement to May that Appellant was the “Shooter”

Appellant complains that the trial court erred when it permitted May to tell 

the jury that Appellant admitted that he killed someone because the statement is 

not relevant under Rule 404(b). May testified that Appellant had said that “George 

Scott gave him a call that he was having some problems with some Mexicans. 

They went over there and they got into an altercation. They went to leave and he 

shot the guy.” May told the jury that Appellant also called the victim a “bitch ass 

Mexican” and said that the victim got what he deserved. When the prosecutor 

asked if Appellant said who shot this person, May said, “Yes. He said that he did.” 

The State did not offer May’s testimony as evidence of an extraneous offense 

separate and apart from the charged offense. Instead, the State offered this 

evidence as proof that Appellant fired the shots that killed Valdez. This statement 

is an admission by a party-opponent, and it supports the allegation that Appellant 

killed Valdez. See TEX. R. EVID. 801(e)(2); Trevino v. State, 991 S.W.2d 849, 853 

(Tex. Crim. App. 1999). Because the statement was not evidence of an extraneous 

offense under Rule 404(b), we need not reach Appellant’s separate contention that 

there was a lack of notice under Rule 404(b).

Appellant further contends that his statements were more prejudicial than 

probative and that the trial judge failed to conduct a Rule 403 balancing test on the 

record. Appellant asks us “to conduct this analysis.” See TEX. R. EVID. 403; 

Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997); Ramirez v. State, 

815 S.W.2d 636, 646 (Tex. Crim. App. 1991). During a hearing outside the jury’s 

presence, Appellant objected to the admissibility of the statement under Rule 403. 

The trial court overruled his objection without further comment. Once a party 

lodges a Rule 403 objection, the trial judge lacks the discretion to decide whether 

to engage in the balancing test required by the rule. Montgomery, 810 S.W.2d at

389 (Tex. Crim. App. 1991). When it makes an admissibility ruling, “the trial 
6

court implicitly makes findings of fact and conclusions of law.” Green v. State, 

934 S.W.2d 92, 104 (Tex. Crim. App. 1996). No authority requires the trial court 

to include findings or conclusions in the record, and Appellant did not ask the trial 

court to do so. See id. Absent an express refusal to conduct the balancing test, we 

presume that a trial court conducted the test when it overruled the Rule 403 

objection. See Santellan v. State, 939 S.W.2d 155, 173 (Tex. Crim. App. 1997) 

(“We find nothing in the record to indicate that the trial court did not perform a 

balancing test, albeit a cursory one.”).

There is a presumption that relevant evidence is more probative than 

prejudicial. Montgomery, 810 S.W.2d at 389. However, there is a potential danger 

that the extraneous bad act may “impress the jury in some irrational but

nevertheless indelible way.” Id. at 390. When conducting the balancing test, the 

question is whether its probative value is substantially outweighed by such a 

danger. TEX. R. EVID. 403. Appellant bragged about the shooting while he was in 

jail prior to trial. Appellant’s admission and his characterization of the victim as a 

“bitch ass Mexican” who “got what he deserved” shows his state of mind and 

clarifies the circumstances surrounding the shooting. This evidence directly 

contradicts Appellant’s defensive theory that the accomplices only named him as 

the shooter to get a reduced sentence and was not likely to “impress the jury in 

some irrational but nevertheless indelible way.” See Montgomery, 810 S.W.2d at 

389–90. We conclude that the trial court did not abuse its discretion.

2. Appellant’s Statement Threatening May

Appellant complains that the trial court erred when it permitted May to also 

testify that Appellant threatened to kill May. Appellant challenges the relevance of 

the statement under Rule 404(b), the prejudicial effect under Rule 403, and the lack 

of notice of the testimony until “immediately before the witness was called during

the trial.” A defendant may not be tried for a collateral crime or for being a 
7

criminal generally, and Rule 404(b) prohibits the admission of evidence of an 

extraneous offense to prove a defendant’s character or to show that the defendant 

acted in conformity with that character. TEX. R. EVID. 404(b); Abdnor v. State, 871 

S.W.2d 726, 738 (Tex. Crim. App. 1994). Evidence of an extraneous offense “is 

inherently prejudicial, tends to confuse the issues in the case, and forces the 

accused to defend himself against charges which he had not been notified would be 

brought against him.” Crank v. State, 761 S.W.2d 328, 341 (Tex. Crim. App. 

1988). Evidence of extraneous offenses may be admissible, however, “as proof of 

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident.” TEX. R. EVID. 404(b).

Although Appellant argued that his alleged threat is not relevant, his 

statement to May is relevant if it is evidence of an extraneous offense offered for 

one of the alternative purposes. May told the jury that Appellant said, “You ho ass 

bitch, you better hope that I don’t get -- I get off on this charge, because if they 

give me 99 years, it won’t take nothing for me to get this door roll along, get mop 

buckets and radio your cell number. . . . and come in and kill your ass.” A person 

commits the offense of making a terroristic threat if he “threatens to commit any 

offense involving violence to any person . . . with intent to . . . place any person in 

fear of imminent serious bodily injury.” TEX. PENAL CODE ANN. § 22.07(a)(2)

(West 2011). May’s testimony is some evidence that Appellant threatened to kill 

him. That constitutes a threat to commit an offense involving violence, and May’s 

testimony is evidence that Appellant made the threat to instill fear in May and to 

prevent him from testifying. Appellant’s threat is an extraneous offense and is 

relevant if it was offered for one of the permissible purposes.

The Court of Criminal Appeals has long held that “criminal acts that are 

designed to reduce the likelihood of prosecution, conviction, or incarceration for 

the offense on trial are admissible under Rule 404(b) as showing ‘consciousness of 
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guilt.’” Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1996). In 

Rodriguez v. State, the defendant, who had been charged with murder, admitted 

that he was present during the killing but claimed that he did not participate in it 

and that he did not inform authorities because he had a criminal record. 577 

S.W.2d 491, 492 (Tex. Crim. App. 1979). Before trial, the defendant approached 

the victim’s brother and ordered him to drop the charges. Id. The Court of 

Criminal Appeals concluded that the threat was admissible and reasoned that 

“[t]hese are hardly the actions of an innocent accused. This evidence is every bit 

as probative of guilt, as would be flight by the accused.” Id. at 493. In 

Baimbridge v. State, a defendant’s threat to kill the arresting officer who had 

locked him in a cell was admissible. 350 S.W.2d 923 (Tex. Crim. App. 1961). 

The court reasoned:

If we regard the statement of the appellant to Officer Mahoney 

as an effort on the part of Appellant to prevent the officer from 

testifying against him or an effort to prevent the officer from 

testifying the truth against appellant, the statement would be 

admissible in evidence as proof that one charged with crime 

threatened or attempted to intimidate a witness against him.

Id. at 923–24.

During Appellant’s opening statement, his counsel told the jury that the only 

evidence the State had against Appellant was accomplice-witness testimony and 

that the accomplices, with hopes for reduced sentences, had motives to lie and to 

say that Appellant pulled the trigger. The State notified Appellant prior to trial that 

it intended to call May as a witness, and the day before trial, Appellant threatened 

to kill May if Appellant did not “get off on this charge.” Appellant’s actions were 

“hardly the actions of an innocent accused” and were probative of guilt. The trial

court properly admitted evidence of the threat that Appellant had made to May; it 

was relevant and probative testimony under Rule 404(b).
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Appellant complains that, even if May’s testimony was admissible, “it didn’t 

meet the prejudicial balancing test under Rule 403.” Most evidence is prejudicial 

to an opponent. Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007). 

“Evidence is unfairly prejudicial only when it tends to have some adverse effect 

upon a defendant beyond tending to prove the fact or issue that justifies its 

admission into evidence.” Id. The relevance of an extraneous offense that shows 

“consciousness of guilt” may be substantially outweighed by undue prejudice if the 

accused can affirmatively show that the evidence “is directly connected to some 

other transaction and further show that it is not connected with the offense on 

trial.” Havard v. State, 800 S.W.2d 195, 203 (Tex. Crim. App. 1989) (quoting 

Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex. Crim. App. 1982)). Here, 

Appellant does not try to connect his threat to a different offense, and the record is 

devoid of any evidence that the threat is related to anything else. For all of the 

foregoing reasons, the trial court did not abuse its discretion when it admitted the 

evidence of Appellant’s threat to May. Appellant’s second issue is overruled.

3. Appellant’s Statement to McKinney

Appellant contends in his third issue that a statement he made to a jailer, 

McKinney, was inadmissible under Rule 404(b). The State contends that the 

statement was an admission by Appellant that he had committed the charged crime. 

McKinney, a jailer from the Ector County Sheriff’s Office, testified that Appellant 

was boasting about his pending release from jail on bond. When jailer McKinney 

said, “You will be back,” Appellant informed her that he did not plan on coming 

back because he did not do drugs, did not drink, was not a thief, and “would just 

have to limit himself to one murder every two years.”

Appellant argues that the State offered his statement as evidence that 

Appellant committed a murder in 2007, which was inadmissible as proof of the 

2007 murder in the absence of evidence of the time, date, and place it occurred. 
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Although the State gave pretrial notice it intended to introduce evidence of a 

murder in Howard County on February 20, 2007, no proof of the 2007 murder was 

admitted. The trial court did not allow May to testify that Appellant told him that 

he had “beat one murder case and [would] beat this one too.” The State argued 

that evidence of Appellant’s statement was not offered to prove the extraneous 

murder; it was offered to prove that Appellant admitted guilt in this case—

Appellant was being held for murder and said he would have to limit himself to 

one murder every two years. The prosecutor argued that Appellant’s statement 

“directly references the charge he is being incarcerated for.”

Unlike the excluded declaration to May that apparently referenced the 2007 

murder, Appellant’s statement to jailer McKinney concerned future conduct. 

When jailer McKinney said, “You will be back,” Appellant responded that he did 

not plan to return to jail because he does not participate in illegal activities like 

drugs and theft. Except for Appellant’s threat to have May killed for testifying 

against him, there is no evidence of any murder other than the charged offense. 

With no evidence in the record of a prior murder, no facts would permit the 

inference that Appellant’s statement was an admission to two murders, one of 

which occurred in Howard County in February 2007. Therefore, Appellant’s 

statement could be reasonably interpreted to refer to future conduct after his 

acquittal on the current murder charge.

The State offered Appellant’s statement to jailer McKinney as proof that 

Appellant shot and killed Valdez as alleged in the indictment. Appellant’s 

statement was admissible as an admission by a party-opponent. See TEX. R. EVID.

801(e)(2); Trevino, 991 S.W.2d at 853. Because we do not disturb the trial court’s 

ruling if it was correct under any theory, we conclude that the trial court did not 

abuse its discretion when it admitted jailer McKinney’s testimony. See Sewell, 629 

S.W.2d at 45.
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Appellant argues that his statement to jailer McKinney was more prejudicial 

than probative. It is “universally” recognized that trial courts have “considerable 

freedom” in evaluating the probative value of evidence offered in relation to its 

prejudicial effect. See Montgomery, 810 S.W.2d at 378. Just like the admissions

to May, Appellant’s statement to jailer McKinney clarifies the circumstances 

surrounding the shooting. This evidence directly contradicts Appellant’s theory of 

the case that the accomplices were wrongly accusing him of firing the gun so that 

they would receive a favorable deal in their own cases. The testimony about the 

statements made to jailer McKinney was not likely to “impress the jury in some 

irrational but nevertheless indelible way.” See Montgomery, 810 S.W.2d at 389–

90. We conclude that the trial court did not abuse its discretion when it admitted 

the statements that Appellant made to jailer McKinney. We overrule Appellant’s 

third issue.

B. Issue One: Sufficiency of Non-Accomplice Testimony

In his first issue on appeal, Appellant argues that the evidence is insufficient

to prove that he “caused the death of the victim in this case.” He argues that,

because the accomplice testimony lacks corroboration by non-accomplice 

evidence, the jury could not consider the accomplice testimony in determining 

guilt. Appellant asserts that the non-accomplice evidence alone is insufficient to 

prove that he committed murder and that he engaged in organized criminal activity.

Six accomplice witnesses testified that the group went to the Barina 

residence to avenge an affront to their Aryan Circle “brother,” that Appellant was 

the only person with a gun, and that he fired the shots toward that residence. All of 

that evidence supports a conclusion that Appellant committed the charged offenses. 

All three of Appellant’s sufficiency issues turn on whether that accomplice

testimony is sufficiently corroborated.
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1. Accomplice Witnesses

The trial court instructed the jury that Wilkins, Scott, Caldwell, Jackson, 

Fierros, and Callaway were accomplice witnesses as a matter of law. The trial 

court did not hold that Griffin and Chunn were accomplice witnesses as a matter of 

law but, instead, submitted the issue to the jury. The trial court correctly instructed 

the jury that it could not use accomplice testimony to convict Appellant unless it 

found that there was other evidence “tending to connect” Appellant with the 

offenses. See TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). Appellant 

argues that, in our review of the sufficiency of the non-accomplice testimony, we 

must eliminate the testimony of any “discredited witness,” which includes any 

witness who received a benefit from the State in exchange for their testimony. We 

disagree.

A person is an accomplice if he participates in the commission of the offense 

with the requisite culpable mental state. Cocke v. State, 201 S.W.3d 744, 748 

(Tex. Crim. App. 2006). “Participation” requires an affirmative act that promotes 

the commission of the charged offense before, during, or after it has been 

committed. Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004). A 

witness is culpable as a party to the offense in which the defendant was charged if 

he acted “with intent to promote or assist the commission of the offense.” TEX.

PENAL CODE ANN. § 7.02(a)(2) (West 2011). The evidence must show that the 

witness “harbored the specific intent to promote or assist the commission of the 

offense.” Pesina v. State, 949 S.W.2d 374, 382 (Tex. App.—San Antonio 1997, 

no pet.); see TEX. PENAL CODE ANN. § 6.03(a) (West 2011) (“A person acts 

intentionally . . . when it is his conscious objective or desire to engage in the 

conduct or cause the result.”).

“Mere presence at a crime scene does not make an individual an accomplice, 

nor is an individual an accomplice merely because he has knowledge about a crime 
13

and fails to disclose that knowledge.” Cocke, 201 S.W.3d at 748; see also 

Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). “A witness is not 

an accomplice witness merely because he or she knew of the offense and did not 

disclose it, or even if he or she concealed it.” Druery, 225 S.W.3d at 498. “In 

short, if the witness cannot be prosecuted for the offense with which the defendant 

is charged, or a lesser-included offense of that charge, the witness is not an 

accomplice witness.” Id.

If the facts are unclear about whether a particular witness is an accomplice,

the trial court should define “accomplice” and instruct the jury to decide whether 

the “witness is an accomplice witness as a matter of fact.” Id. at 498–99. If there 

is some evidence of an affirmative act by the witness to assist in the commission of 

the charged offense, a jury instruction must be in the court’s charge. Id. at 499. 

When a witness has been charged “with the same offense as the defendant or a 

lesser-included offense or when the evidence clearly shows that the witness could 

have been so charged,” the trial court has a “duty to instruct the jury that a witness 

is an accomplice witness as a matter of law.” Id. at 498. If the witness is an 

accomplice witness as a matter of law or if the jury finds that the witness is an 

accomplice, then the jury must find other evidence that tends to connect the 

accused to the crime. CRIM. PROC. art. 38.14.

Appellant first argues that May is an accomplice because he “received a 

sentence reduction for testifying against the Appellant.” We agree with the State’s 

contention, however, that May is not an accomplice because he did not participate 

in “the commission of the crime.” After Appellant admitted to the murder, May 

sent a letter to the district attorney offering to testify, and the State agreed to a twoyear plea agreement instead of the previous three-year offer. Appellant is correct 

that May could have had a reason to be biased because of his reduction in sentence, 

but because he could not be charged with the same or a lesser included offense of 
14

the charged offenses, May is not an accomplice witness. See Druery, 225 S.W.3d 

at 498. Therefore, the jury could have considered his testimony as non-accomplice 

corroborating evidence.

Appellant also contends that all the State’s witnesses who were involved 

with the offense were accomplices. The State argues that Chunn was not an 

accomplice witness because he was merely present during the commission of the 

offense. Appellant neither asked the trial court to instruct the jury that Chunn was 

an accomplice as a matter of law nor objected to the submission of the issue to the 

jury. Moreover, Appellant does not argue on appeal that such an instruction should 

have been given. Instead, Appellant argues that, when we assess the sufficiency of 

the corroborating non-accomplice testimony, we should not consider the testimony 

of any witness that was “involved with the offense on the night in question” 

because each “received dismissals or a significant reduction in the sentences or 

their charges.”

Chunn worked with Jackson and Callaway, but Chunn was not a member of 

the Aryan Circle. Chunn testified that his crew was heading home from the oil 

field when Jackson received a phone call. After Jackson received the call, they 

stopped at a convenience store. Chunn testified that they met a group of people at 

the store but that he did not know them. Chunn said that some of the group got

into his car and some got into a Yukon and that they all went to a residence. But 

when they heard gunfire, everyone ran and hid behind a “trailer” across the street. 

According to Chunn, Appellant fired a gun in the direction of Barina’s home

before the group got back into the vehicles and left.

Later, investigators called Chunn’s cell phone to ask some questions, but 

Chunn never gave a formal statement and was never charged. Chunn was in jail 

for other charges in another county and did not know he would testify against 
15

Appellant until he heard that a bench warrant had been issued. The State made no 

promises to Chunn for his testimony.

Chunn’s presence at the murder scene did not render him an accomplice. 

See Druery, 225 S.W.3d at 498. Because Chunn was not charged and because the 

evidence did not show that he could have been indicted for the same offense, he 

was not an accomplice as a matter of law. Id.; Cocke, 201 S.W.3d at 747–48. 

There was some evidence, however, that Chunn may have committed an act to 

promote the commission of the offenses. It was proper for the trial court to submit 

to the jury the issue of whether Chunn was an accomplice witness. And a 

reasonable jury could have found that Chunn neither participated in the 

commission of the offenses nor had the required intent. See Solomon v. State, 49 

S.W.3d 356, 362 (Tex. Crim. App. 2001) (holding that, when a jury is instructed to 

determine whether a witness is an accomplice, the jury may believe that the 

witness was not an accomplice); In re A.N.V., No. 11-05-00200-CV, 2007 WL 

118926, at *4 (Tex. App.—Eastland Jan. 18, 2007, no pet.) (mem. op.) (jury is free 

to believe witness is not an accomplice). Therefore, the jury could have considered

Chunn’s testimony as non-accomplice corroborating evidence.

2. Accomplice-Witness Corroboration

“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.” CRIM. PROC. art. 38.14. To review the sufficiency of corroborating 

evidence, we eliminate the accomplice witness testimony and consider the 

remaining evidence in the record to determine whether any evidence tends to 

connect the defendant to the commission of the offense. Solomon, 49 S.W.3d at

361; Keith v. State, 384 S.W.3d 452, 457 (Tex. App.—Eastland 2012, pet. ref’d).

Although the mere presence of the accused at the scene of the crime is by itself 

insufficient corroboration, presence combined with other suspicious circumstances
16

may sufficiently connect the defendant to the offense. Dowthitt v. State, 931 

S.W.2d 244, 249 (Tex. Crim. App. 1996); Cox v. State, 830 S.W.2d 609, 611 (Tex. 

Crim. App. 1992). A defendant’s conduct prior to or after the offense may connect 

the defendant with the commission of the offense. Smith v. State, 332 S.W.3d 425, 

445 (Tex. Crim. App. 2011). “Thus there must simply be some non-accomplice 

evidence which tends to connect appellant to the commission of the offense alleged 

in the indictment.” McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997).

Appellant argues that, once the accomplice-witness testimony is eliminated, 

no physical evidence connects him to the offenses and no witnesses remain who 

identify “Appellant as the shooter.” We disagree for two reasons. First, the 

requirement is not that the corroborating evidence independently prove that 

Appellant committed the offenses but that it tends to connect him to the offenses. 

See Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999) (“It is not 

necessary that the corroborating evidence . . . be sufficient by itself to establish 

guilt.”). Second, Appellant ignores Chunn’s testimony because he assumes it is 

accomplice testimony, but because a rational jury could have found that Chunn

was not an accomplice, Chunn’s testimony cannot be ignored.

Chunn testified that Appellant had a chrome-plated pistol and “put his hand 

back to push everybody behind him” as they hid behind the trailer. Chunn said

that Appellant “leaned up against the trailer and took aim and fired” his gun in the 

direction of the residence. Chunn told the jury that his group ran and jumped in the 

two vehicles and left. According to Chunn, Appellant told the group later that 

night that he had shot someone.

The State’s other non-accomplice evidence showed that Appellant admitted 

to May that he had shot and killed someone and also that he admitted to jailer 

McKinney that he would stay out of jail if he did not commit a murder for a while. 

Appellant also threatened to kill May. The investigators found four spent shell 
17

casings near the trailer. A neighbor testified that he was familiar with gunfire and 

that he heard five shots from a handgun and one from a shotgun that night. That 

evidence is consistent with other testimony that a warning shot had been fired from 

the handgun, that four shots had been fired from across the street near the trailer, 

and that a shotgun had been fired at the ground. This evidence tends to connect 

Appellant to Valdez’s murder and the associated organized criminal activity 

offense, and it sufficiently corroborates the testimony of the accomplice witnesses. 

Appellant’s first issue is overruled.

C. Issues Four and Five: Sufficiency of the Evidence

Appellant asserts in his fourth and fifth issues that the evidence is legally 

and factually insufficient to support both of his convictions. The Court of Criminal 

Appeals has concluded that “there is no meaningful distinction between” reviewing 

the evidence for factual and legal sufficiency and has instructed that “the 

Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing 

court should apply in determining whether the evidence is sufficient to support

each element of a criminal offense that the State is required to prove beyond a 

reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)

(referring to Jackson v. Virginia, 443 U.S. 307 (1979)). Under the Jackson v. 

Virginia standard, we must defer to the jury’s credibility and weight 

determinations. Id. at 894. We consider all of the evidence in the light most 

favorable to the verdict to determine whether a jury could rationally find the 

defendant was guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 

319.

A person commits the offense of murder if he knowingly or intentionally 

causes the death of an individual. See TEX. PENAL CODE ANN. § 19.02 (West 2011). 

To prove that Appellant committed the offense of engaging in organized criminal 

activity, the State must have shown that he (1) intended to participate in a criminal 
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street gang and (2) committed murder. See TEX. PENAL CODE ANN. § 71.02(a)(1)

(West Supp. 2012). Appellant concedes he was a member of the Aryan Circle, a 

criminal street gang, but argues that the evidence did not prove he was “the 

shooter” and that, therefore, he is not guilty of murder or organized criminal 

activity. Appellant again incorrectly assumes Chunn was an accomplice.

The State sought to prove that Appellant, six Aryan Circle members, and 

two others, went to Barina’s home to retaliate against Roupp, Valdez, and Barina 

for a fight earlier that night with Scott. The jury was instructed that “[a] person 

commits the offense of MURDER if a person intentionally or knowingly causes 

the death of an individual, or if a person intends to cause serious bodily injury and 

commits an act clearly dangerous to human life that causes the death of an 

individual.” The jury was instructed that a person acts intentionally “when it is his 

conscious objective or desire to cause the result” and that a person acts knowingly 

“when he is aware that his conduct is reasonably certain to cause the result.” See

PENAL § 6.03(a), (b).

The State argued that Appellant was the only one with a gun who fired in the 

direction of the three men, killing Valdez. The jury heard testimony of eight other 

people who went with Appellant to Barina’s home that night. Scott called Jackson 

and told him about the fight at Fierros’s house. Both Scott and Jackson called 

Appellant, Wilkins, and Caldwell, and Callaway, Griffin, and Chunn were in the 

car with Jackson. The group of nine converged at the 7-Eleven across from 

Fierros’s house and planned to retaliate. Jackson testified he called Roupp and 

explained that “something had to be done” for “jumping” Scott and Fierros. 

Jackson offered to meet and fight it out one-on-one, but when Roupp said “he 

wasn’t trying to do that,” Jackson told him that Roupp would “suffer the 

consequences.” Fierros, Scott, Wilkins, and Caldwell testified that Fierros had

been to Barina’s home a few times and that she took them there. Fierros testified 
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that everyone was aware that they were going to Barina’s home to retaliate for 

what happened to Fierros and Scott.

All of the accomplices testified that, when the group arrived and exited their 

vehicles, they heard gunfire and scattered. Wilkins, Fierros, Caldwell, and 

Callaway testified that they drove off after hearing gunshots and met up with the 

rest of the group later. Scott, Jackson, Chunn, and Griffin testified that they ran 

across the street and hid behind a trailer. Scott testified that he saw Appellant 

down on one knee and saw “muzzle flashes coming out of his hand.” Jackson 

testified that he was kneeling about a foot away when he watched Appellant fire

his weapon “[t]owards the crowd of silhouettes.” Callaway testified that Appellant 

was shooting at Barina’s trailer. Chunn also saw Appellant aim and fire at the 

Barina residence. Everyone testified that they ran to their vehicles and went to the 

home of Wilkins’s aunt.

Appellant also admitted to others in his gang that he fired his weapon and 

killed someone that night. Wilkins testified that Appellant said he “thought he got 

him.” Scott testified that Appellant told them that he saw “one fall.” Fierros 

testified that Appellant said “he got one of them.” According to Jackson, 

Appellant said, “I think I got one.” Caldwell testified that she heard someone say 

“one fell.” Later, Appellant told Jackson that the plan was to tell the police that 

Scott pulled the trigger. Jackson testified that he even received a letter from 

Appellant in which Appellant stated that someone would be charged and that, if he 

went to prison, everyone was “going to suffer over it.”

Wilkins testified that Appellant brought his silver-plated .380 handgun on 

the night that the offenses were committed. Wilkins testified that she also saw 

Appellant take the gun with him when he got out of the vehicle at Barina’s 

residence. Wilkins and Jackson both testified that Appellant was the only person 

who had a gun. Jackson saw Appellant with “a little .380” handgun. Wilkins also 
20

told the jury that, when Appellant heard that the police might search their 

residence, she saw him put the .380 handgun into a black trash bag and place it in 

the dumpster and heard him ask Caldwell and Truex to “come pick it up.” 

Caldwell testified that she and Truex went to the alley behind Appellant’s house, 

picked up the gun, and took the gun to Truex’s house. A few days later, Caldwell 

showed Truex how to take apart the gun and “clean it off.” Jennifer McWilliams 

told the jury that she and Truex burned the gun at her house and dumped it in a 

pond. Finally, investigators recovered four spent casings near the corner of the 

trailer; they had been fired from a .380.

There is sufficient evidence to show that Appellant fired his gun in the 

direction of the three men. When a person fires a gun into a group of people 

without a specific or intended victim, the probability of serious bodily injury is so 

great that any resulting death constitutes murder. See Womble v. State, 618 S.W.2d 

59, 64 (Tex. Crim. App. [Panel Op.] 1981); Salisbury v. State, 235 S.W. 901, 902 

(Tex. Crim. App. 1921). A rational jury could have concluded beyond a 

reasonable doubt that Appellant committed the offenses of murder and engaging in 

organized criminal activity. We, therefore, overrule Appellant’s fourth and fifth

issues.

This Court’s Ruling

We affirm the judgment of the trial court.

MIKE WILLSON

June 13, 2013 JUSTICE

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

Panel consists of: Wright, C.J.,

McCall, J., and Willson, J.