MEMORANDUM OPINION

Nos. 04-10-00123-CR; 04-10-00124-CR; 04-10-00125-CR

Abelardo Gerardo GONZALEZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 49th Judicial District Court, Webb County, Texas

Trial Court Nos. 2008CRR000657D1; 2008CRR000662D1; 2008CRR000665D1

Honorable Jose A. Lopez, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Chief Justice

Karen Angelini, Justice

Marialyn Barnard, Justice

Delivered and Filed: August 31, 2011

AFFIRMED

A jury convicted Abelardo Gerardo Gonzalez of three counts of aggravated robbery and 

three counts of engaging in organized criminal activity. Gonzalez was sentenced to thirty years’ 

imprisonment on each count and was ordered to serve these sentences concurrently. On appeal, 

Gonzalez argues his convictions must be reversed because (1) the accomplice witness testimony 

was not sufficiently corroborated; (2) the evidence was insufficient to support his convictions for 

engaging in organized criminal activity because there was no evidence he participated in the 
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planning or carrying out of the robberies; (3) the trial court erred in denying his motion to 

suppress evidence; (4) he was deprived of a fair trial because of prosecutorial misconduct; (5) the 

trial court erred in admitting the out-of-court statements of a deceased co-defendant; (6) the trial 

court erred in refusing to declare a mistrial after a juror became disabled; and (7) the indictments 

failed to vest the trial court with jurisdiction over the offenses of engaging in organized criminal 

activity. We overrule all of Gonzalez’s issues, and affirm the judgments of conviction. 

BACKGROUND

This case involves three robberies that occurred in Laredo, Texas, in the span of two 

months. On December 5, 2007, at about 10:00 p.m., a robbery took place at a restaurant called 

“The Glass Kitchen.” A young man entered the restaurant, exhibited a handgun, and demanded 

money. On December 24, 2007, at about 7:00 a.m., two men wearing black ski masks entered 

Luby’s Cafeteria through the back door, exhibited semi-automatic weapons, and directed the 

restaurant manager to open the safe. On January 23, 2008, at about 6:20 a.m., two men wearing 

black ski masks entered Taco Palenque Jr., exhibited handguns, and directed the manager to 

open the safe. In all three robberies, restaurant employees complied with the robbers’ demands 

for money. In the Taco Palenque robbery, the money was placed in an International Bank of 

Commerce (“IBC”) money bag.

A police investigation led to three indictments against Gonzalez. Each indictment 

charged Gonzalez with multiple counts of robbery and one count of engaging in organized 

criminal activity. Gonzalez pleaded not guilty, and was tried on all charges before a single jury. 

The State’s theory at trial was that Gonzalez recruited other individuals to commit the robberies. 

According to this theory, Gonzalez planned the robberies; directed his recruits on how and when 

to commit the robberies; equipped his recruits with the vehicles, gloves, weapons, and ski masks 
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used in the robberies; and served as a lookout during the robberies. After each robbery, Gonzalez 

met with his recruits and split the proceeds with them.

At trial, the evidence showed David Lee Mendez participated in all three robberies. 

Mendez was joined by Vincent Hernandez in the Glass Kitchen robbery, and by Ricardo 

Camarillo in the Luby’s and Taco Palenque robberies. Accomplice witnesses Hernandez and 

Camarillo testified that they met with Gonzalez and Mendez before the robberies; that Gonzalez 

drove them to an apartment complex to pick up the vehicles used in the robberies; that Gonzalez 

followed them to the restaurants immediately before the robberies; that Gonzalez told them he 

would serve as a lookout during the robberies; that they met with Gonzalez after the robberies; 

and that Gonzalez handed them their share of the robbery proceeds. Hernandez and Camarillo 

testified that Gonzalez was known to them as “Chief.”

Mendez, who was also indicted for the robberies, died before trial. Mendez’s common 

law wife, Erika Hinojosa, testified about statements Mendez had made to her about the Luby’s 

robbery. According to Hinojosa, Mendez told her that he and Camarillo committed the Luby’s 

robbery. Mendez also told Hinojosa other information about the Luby’s robbery, including that 

Gonzalez planned the Luby’s robbery, Gonzalez supplied the weapons used in the robbery, and 

Gonzalez waited for him in a truck during the robbery. Finally, Mendez told Hinojosa that 

Gonzalez’s brother, Hipolito Gonzalez, worked at Luby’s, knew how much cash would be in the 

safe on the day of the robbery, and left the back door of the restaurant open on the morning of 

the robbery. 

Laredo police detective Roberto Garcia testified that about three weeks after the Taco 

Palenque robbery police officers obtained a warrant to search Gonzalez’s residence. In searching 

Gonzalez’s garage, police found various items, including two black ski masks, two 9-millimeter 
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pistols, a bag containing various types of ammunition, three cans of pepper spray, a BB gun, a 

green ski mask, and an IBC money bag.

The jury found Gonzalez guilty of three counts of aggravated robbery and three counts of 

engaging in organized criminal activity. Gonzalez appealed.

ACCOMPLICE WITNESS CORROBORATION/SUFFICIENCY OF THE EVIDENCE

Gonzalez raises two distinct arguments in his first issue. Gonzalez argues both that the 

evidence was insufficient to corroborate the accomplice witness testimony, and that the evidence 

was legally insufficient to support his convictions for engaging in organized criminal activity.1

We address each of Gonzalez’s arguments, but do so separately. See Cathey v. State, 992 S.W.2d 

460, 462 (Tex. Crim. App. 1999) (refraining from imposing legal sufficiency standards upon a 

review of accomplice witness testimony under Article 38.14).

Accomplice Witness Corroboration

Gonzalez claims the evidence was insufficient to corroborate the accomplice witness 

testimony as required by Article 38.14, which provides, “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; and the corroboration is not sufficient if it merely shows 

the commission of the offense.” TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005) (emphasis 

added). Article 38.14, known as the accomplice witness rule, reflects a legislative determination 

that accomplice testimony implicating another should be viewed with some level of caution. Gill 

v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994). However, the accomplice witness rule does 

not require the non-accomplice evidence to be sufficient in itself to establish the accused’s guilt 

 1

Gonzalez also argues the evidence is factually insufficient to support his convictions. However, the Texas Court of 

Criminal Appeals has recently held that the legal sufficiency standard set forth in Jackson v. Virginia, 443 U.S. 307 

(1979), is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to 

support each element of the 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); see Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). 
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beyond a reasonable doubt. Id. Nor is it necessary for the non-accomplice evidence to directly 

link the accused to the commission of the offense. Id. “All that is required is that there be some

non-accomplice witness evidence which tends to connect the accused to the commission of the 

offense alleged in the indictment.” Id. (emphasis in original). The “tends-to-connect” test is not 

difficult to satisfy. See Cantelon v. State, 85 S.W.3d 457, 461 (Tex. App.—Austin 2002, no pet.). 

Even seemingly insignificant circumstances may satisfy the test. Id. Moreover, no precise rule 

can be formulated as to the amount of evidence that is required to corroborate the testimony of 

an accomplice witness. Gill, 873 S.W.2d at 48. Each case must be judged on its own facts. Id.

In reviewing corroboration under the accomplice witness rule, we eliminate all 

accomplice witness testimony from consideration and then examine the remaining portions of the 

record to see if there is any evidence that tends to connect the accused with the commission of 

the offense. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The corroborating 

evidence need not be sufficient by itself to establish guilt; the non-accomplice evidence must 

simply link the accused in some way to the commission of the crime, such that rational jurors 

could conclude this evidence sufficiently tended to connect the accused to the offense. Id. One 

accomplice witness’s testimony may not corroborate the testimony of another accomplice 

witness. Badillo v. State, 963 S.W.2d 854, 857 (Tex. App.—San Antonio 1998, pet. ref’d). 

When reviewing corroboration under the accomplice witness rule, we view the evidence in the

light most favorable to the jury’s verdict. Gill, 873 S.W.2d at 48.

Although Gonzalez argues there was no non-accomplice witness evidence tending to 

connect him to the charged offenses, our review of the record leads us to conclude otherwise. 

There is some non-accomplice witness evidence that tends to connect Gonzalez with the 

commission of these offenses. The money taken in the Taco Palenque robbery was placed in an 
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IBC money bag. When police searched Gonzalez’s garage they found an IBC money bag like the

one taken in the Taco Palenque robbery. The two assailants in the Luby’s and the Taco Palenque 

robberies wore black ski masks. Two black ski masks were found in Gonzalez’s garage. Pistols 

were used in the Glass Kitchen and Taco Palenque robberies. Two pistols were found in 

Gonzalez’s garage. Semi-automatic weapons were used in the Luby’s robbery. A bag containing 

ammunition for a variety of weapons, including semi-automatic weapons, was found in 

Gonzalez’s garage.

Additionally, the non-accomplice witness evidence showed Gonzalez was a regular 

customer at the Glass Kitchen before the robbery but was no longer a customer after the robbery. 

The non-accomplice witness evidence also showed Gonzalez’s brother worked at Luby’s and 

knew that there would be an unusually large sum of money in the safe at the time the robbery 

was committed. 

Viewed in the light most favorable to the jury’s verdict, rational jurors could conclude 

this evidence sufficiently tended to connect Gonzalez to the offenses. We conclude article 

38.14’s corroboration requirement was satisfied.

Sufficiency of the Evidence

In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence 

in the record, including accomplice witness testimony, in the light most favorable to the verdict 

and determine whether a rational trier of fact could have found the essential elements of the 

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. 

State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). We defer to the jury’s credibility and 

weight determinations because the jury is the sole judge of the witnesses’ credibility and the 

weight to be given their testimony. See Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 899. 
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Gonzalez acknowledges that the State’s theory was that he was a party to the robberies. 

Nevertheless, Gonzalez argues the evidence was insufficient to support his conviction under this 

theory because the evidence shows, at most, that Gonzalez was some distance away at the time 

of the robberies, and therefore, could not have solicited, encouraged, directed, aided, or 

attempted to commit the robberies in question. “A person is criminally responsible for an offense 

committed by the conduct of another if...acting with intent to promote or assist the commission 

of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit 

the offense...” TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2003).

Here, both Hernandez and Camarillo testified that they met with Gonzalez and Mendez 

before the robberies; that Gonzalez gave them directions about how to commit the robberies; that 

Gonzalez told them when to commit the robberies; that Gonzalez drove them to an apartment 

complex to pick up the vehicles used in the commission of the robberies; that Gonzalez followed 

them to the restaurants immediately before the robberies; that Gonzalez told them he would serve 

as a lookout during the robberies; that they met with Gonzalez after the robberies; and that 

during this meeting Gonzalez handed them their share of the robbery proceeds. Camarillo also 

testified that the guns and ski masks used by him and Mendez in the Luby’s and Taco Palenque 

robberies were found inside the vehicles supplied by Gonzalez. 

Based on this evidence, a rational jury could have concluded Gonzalez solicited, 

encouraged, directed, aided, or attempted to commit the robberies. We, therefore, conclude the 

evidence was sufficient to support Gonzalez’s convictions.

MOTION TO SUPPRESS

In his second issue, Gonzalez argues the trial court erred in denying his motion to 

suppress evidence seized from his residence pursuant to a search warrant. Laredo Police 
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Investigator Primo Guzman submitted a signed affidavit detailing information he had received 

from multiple sources that led him to believe Gonzalez was involved in several robberies, and 

that evidence of this involvement would be found at Gonzalez’s residence. The magistrate 

accepted the affidavit and issued a search warrant that resulted in the seizure of evidence 

presented at trial. Gonzalez moved to suppress the evidence claiming the affidavit incorrectly 

described the premises to be searched and did not contain sufficient information to give rise to 

probable cause. The trial court denied Gonzalez’s motion to suppress and the evidence was 

presented to the jury. 

An appellate court’s review of a magistrate’s decision to issue a warrant requires a highly 

deferential standard of review. Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 

2004). This standard is “based on the Fourth Amendment’s strong preference for searches 

conducted pursuant to a warrant and the need for an incentive to encourage police to use the 

warrant process.” Id. As long as there was a substantial basis for concluding that probable cause 

existed, an appellate court should uphold a magistrate’s probable cause determination. State v. 

McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). A magistrate will find probable cause 

when, under the totality of the circumstances, a fair probability exists that evidence of a crime 

will be found at a specified location. Id. at 272. When reviewing a magistrate’s determination, an 

appellate court should interpret the affidavit in a commonsensical and realistic manner, 

recognizing that the magistrate may draw reasonable inferences. Id. at 271. When in doubt, the 

court is instructed to defer to all reasonable inferences the magistrate could have made. Id. 

Accordingly, we adopt a highly deferential approach to our review of the magistrate’s decision to

issue the warrant to search Gonzalez’s property.
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First, Gonzalez argues that the affidavit is invalid because it lists his address as 619 

Meadow when in fact he lives at 621 Meadow. However, the affidavit provides a detailed 

physical description of the house, including stating that it is a “two story pink in color stucco 

residence with a red tile roof” and that there is a “fence with pink in color pillars and a white iron 

gate in front of the residence.” The detailed physical description of the residence acted as a 

safeguard to any numbering errors in the address.

Second, Gonzalez argues that the affidavit is invalid because it lists Hipolito Gonzalez 

and Ricardo Camarillo as being in possession and control of the premises. However, a simple 

review of the affidavit shows that these names are listed alongside Gonzalez’s name under a 

heading identifying all parties in possession and control of the locations to be searched. Nowhere 

in the affidavit are Hipolito Gonzalez and Ricardo Camarillo listed as being in exclusive 

possession and control of the residence. 

Finally, Gonzalez argues that the affidavit is invalid because it does not disclose when 

one of the sources provided information to the affiant, Investigator Guzman. The purpose for 

including details about the timing of the information received is to ensure that the information is 

still relevant and has not become stale. See Uresti v. State, 98 S.W.3d 321, 336 (Tex. App.—

Houston [1st Dist.] 2003, no pet.). In the affidavit, Investigator Guzman states the source 

discussed the Taco Palenque robbery, which took place on January 23, 2008. The affidavit was 

made on February 14, 2008. From this, the magistrate could have inferred the source provided 

the information in the three weeks before the affidavit was signed. Because the information was 

provided to Investigator Guzman so close in time to the issuance of the warrant, there was little 

chance of the information being stale or irrelevant. 
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Based on a common sense reading of the entirety of the affidavit, we conclude that there 

was a substantial basis for a finding of probable cause. We, therefore, overrule Gonzalez’s 

second issue.

PROSECUTORIAL MISCONDUCT

In his third issue, Gonzalez alleges the State engaged in prosecutorial misconduct that 

was so egregious it deprived him of his constitutional right to a fair trial. In order to properly 

preserve error resulting from prosecutorial misconduct a defendant generally must (1) make a 

timely and specific objection on the grounds of prosecutorial misconduct, (2) request an 

instruction for the jury to disregard the comment, evidence, or argument improperly put before it, 

and (3) move for a mistrial. Hajjar v. State, 176 S.W.3d 554, 566 (Tex. App.—Houston [1st 

Dist.] 2004, pet. ref’d). However, error preservation is not required when the misconduct is so 

prevalent that it infects the trial and makes the conviction a denial of due process. Jimenez v. 

State, 240 S.W.3d 384, 411 (Tex. App.—Austin 2007, pet. ref’d) (citing Darden v. Wainwright, 

477 U.S. 168, 181 (1986)). The burden to prove a constitutional violation is significantly higher 

than that of overturning a properly preserved objection. See id. Prosecutorial misconduct does 

not assume a constitutional dimension unless the evidence presented is so insubstantial that but 

for the misconduct no conviction would have occurred. Id. at 412 (citing Guidroz v. Lynaugh, 

852 F.2d 832, 838 (5th Cir. 1988)).

Here, Gonzalez acknowledges he did not preserve any of his prosecutorial misconduct 

complaints by objecting on the ground of prosecutorial misconduct. Nevertheless, Gonzalez 

contends we should reverse his conviction because the prosecutorial misconduct in his case was 

so prevalent that it infected the trial and made his convictions a denial of due process. We first 
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explain the substance and context of each of these complaints and then evaluate their overall 

effect on Gonzalez’s trial.

Testimony about Gonzalez’s brother

According to Gonzalez, the prosecutor engaged in misconduct when he elicited testimony 

from Laredo police detective Garcia that he had interviewed co-defendants who confessed to the 

Luby’s robbery and implicated Gonzalez and his brother, Hipolito, in the crime. Gonzalez 

objected to these statements, although not on grounds of prosecutorial misconduct. The trial 

court sustained the objection and the jury was instructed to disregard Garcia’s statement. 

Gonzalez further complains the prosecutor attempted to convince the jury that Hipolito 

had opened the rear entrance of Luby’s for the robbers when the State was in possession of a 

videotape showing someone else had done so. However, the portions of the record cited by 

Gonzalez show the prosecutor eliciting testimony from the manager of Luby’s that another 

employee, not Hipolito, opened the rear door of the restaurant on the morning of the robbery.

Because the portions of the record cited by Gonzalez do not support his argument, we are unable 

to consider this complaint. See Johnson v. State, 263 S.W.3d 405, 416 (Tex. App.—Waco 2008, 

pet. ref’d) (stating that allegations are improperly briefed and appellate court will not consider 

allegations when appellant points to nothing in the record to support his position). 

Testimony about David Mendez’s murder

Gonzalez complains the prosecutor improperly elicited testimony that gave jurors the 

impression that Gonzalez had murdered his co-defendant, Mendez, to keep him from testifying 

against Gonzalez. This alleged misconduct occurred during the presentation of the defense’s 

case. The defense had called the defendant’s mother, Margarita B. Gonzalez to testify. On direct 

examination, Gonzalez’s mother testified about a phone conversation between Mendez’s 
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common law wife, Hinojosa, and Gonzalez. According to Gonzalez’s mother, Hinojosa told 

Gonzalez that she knew he had murdered Mendez. On cross-examination, the State followed up 

on this question and asked, “Why would Hinojosa say that your son murdered David Mendez?” 

The witness responded, “Because the police had told her.” Gonzalez objected, and the trial court 

held a conference outside the presence of the jury. At this conference, the prosecutor explained 

that the only reason he asked the question was because the witness’s testimony appeared to 

attack Hinojosa’s credibility. Gonzalez requested an instruction for the jury to disregard the 

witness’s statement. The trial court granted Gonzalez’s request and instructed the jury to 

disregard the statement.

Testimony and argument about finances and court-appointed counsel 

Gonzalez complains the prosecutor improperly elicited testimony about Gonzalez’s 

income and made arguments about his court-appointed counsel. Gonzalez testified at trial. 

During cross-examination, the prosecutor asked Gonzalez about his finances and why he had a 

court-appointed attorney. Gonzalez made no objection to these questions. During closing 

arguments, the prosecutor told the jury that as taxpayers they would be paying for Gonzalez’s 

defense. Gonzalez objected to this argument as improper argument. The trial court sustained the 

objection and the jury was instructed to disregard the argument.

Argument about stolen vehicles

Gonzalez complains about the prosecutor’s argument suggesting that three stolen vehicles 

were found at Gonzalez’s residence, when in fact only one of the vehicles found at the residence 

had been reported stolen. Here, we disagree with Gonzalez’s characterization of this portion of 

the record. Initially, the prosecutor stated, “[The masks] were found in that same truck that was 

reported stolen just like the other two vehicles that were used in his own garage.” The prosecutor 
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then stated, “The truck that was in the house was reported stolen.” Although the prosecutor’s 

initial comment was confusing, the prosecutor’s next comment clarified the matter. When 

viewed in its entirety, the prosecutor’s argument did not amount to prosecutorial misconduct.

Evidence and argument about items found in the search of Gonzalez’s residence

Gonzalez complains it was misconduct for the prosecutor to have elicited evidence about

items found at Gonzalez’s house, such as pepper spray, masks, and shotgun shells. Nevertheless, 

we conclude these items were properly admitted to show preparation or a common scheme or 

plan in committing the robberies. 

Gonzalez also contends that it was improper for the State to argue to the jury that the IBC 

bank bag found at Gonzalez’s residence was the same one that had been taken in the Taco 

Palenque robbery. To fall within the realm of proper jury argument, the argument must 

encompass one of the following areas: summation of the evidence presented at trial, reasonable 

deduction from the evidence, answer to opposing counsel’s argument, or a plea for law 

enforcement. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). The State is 

permitted to draw reasonable inferences from the evidence and is to be afforded wide latitude in 

its arguments as long as the argument is supported by the evidence and made in good faith. Id.; 

Stewart v. State, 995 S.W.2d 187, 190 (Tex. App.—Fort Worth 1999, pet. ref’d). We conclude 

the argument about the IBC bank bag was reasonably supported by the evidence and nothing 

indicates it was made in bad faith. 

Argument about leading Mendez to a life of crime

Gonzalez alleges it was misconduct for the prosecutor to argue to the jury that Gonzalez 

had led Mendez to a life of crime. Throughout the trial there was ample evidence presented 

showing the relationship and history between Gonzalez and Mendez. Again, the prosecutor’s 
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argument was a reasonable inference to draw from the evidence and nothing indicates it was 

made in bad faith.

To sustain this issue, we would have to conclude that prosecutorial misconduct so 

infected Gonzalez’s trial with unfairness that the resulting convictions were a denial of due 

process. See Jimenez, 240 S.W.3d at 411-12. And, because Gonzalez did not object to the alleged 

prosecutorial misconduct, he bears the heavy burden of showing that the evidence was so 

insubstantial that but for the prosecutorial misconduct he would not have been convicted. See id.

at 412.

As previously shown, some of the complaints raised by Gonzalez involve evidence or 

argument that was proper. Other complaints raised by Gonzalez involve evidence or argument 

that the jury was instructed to disregard. Nothing in the record suggests the jury did not heed 

these instructions. None of the complaints raised by Gonzalez rises to the level of prosecutorial 

misconduct. Thus, the record fails to demonstrate that prosecutorial misconduct infected the trial 

to such a level that Gonzalez was denied his constitutional right to a fair trial. Nor can we say 

that but for prosecutorial misconduct Gonzalez would not have been convicted. We overrule 

Gonzalez’s fourth issue.

ADMISSION OF CO-DEFENDANT’S STATEMENTS

In his fourth issue, Gonzalez argues that the trial court erred by allowing statements 

allegedly made by deceased co-defendant Mendez to be presented to the jury. The State offered 

these statements through Erika Hinojosa, Mendez’s common law wife. According to Hinojosa’s 

testimony, Hinojosa asked Mendez about the Luby’s robbery after she had learned about it on the 

news. In response, Mendez told her about his involvement in the Luby’s robbery. Mendez 

admitted that he and Camarillo committed the robbery and that they were armed. Mendez said 
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Gonzalez provided the guns used in the robbery and waited for them in a truck while they 

committed the robbery. Mendez stated Gonzalez and Hipolito had planned the robbery. Mendez 

said Hipolito, who was working at the restaurant, knew exactly how much money was going to 

be in the restaurant on the day of the robbery. Mendez explained Hipolito had left the back door 

open on the morning of the robbery, and he and Camarillo entered through the back door. 

Gonzalez objected to this testimony on the basis of lack of confrontation, hearsay, and unfair 

prejudice. The trial court overruled all of these objections. 

On appeal, Gonzalez concedes the statements made by Mendez were nontestimonial in 

nature and, thus, the Confrontation Clause would not necessarily bar their admission. See 

Crawford v. Washington, 541 U.S. 36, 68 (2004); Walter v. State, 267 S.W.3d 883, 889 (Tex. 

Crim. App. 2007). Nevertheless, Gonzalez argues the statements should have been excluded 

because they lacked corroborating circumstances clearly indicating their trustworthiness as 

required by Texas Rule of Evidence 803(24).

Texas Rule of Evidence 803(24) is the hearsay exception for statements against penal 

interest. TEX. R. EVID. 803(24); Walter, 267 S.W.3d at 889. The rule provides a two-step 

foundation requirement for admissibility. Walter, 267 S.W.3d at 890. First, the trial court must 

determine if the statements, considering the circumstances, subject the declarant to liability and 

whether the declarant realized this when he made the statements. Id. Second, the court must 

determine if there are sufficient corroborating circumstances that clearly indicate the 

trustworthiness of the statements. Id. at 891. When evaluating the second requirement, courts 

consider a number of factors, including: (1) whether the guilt of the declarant is inconsistent with 

the guilt of the defendant, (2) whether the declarant was so situated that he might have 

committed the crime, (3) the timing of the declaration, (4) the spontaneity of the declaration, (5) 
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the relationship between the declarant and the party to whom the statement is made, and (6) the 

existence of independent corroborative facts. Dewberry v. State, 4 S.W.3d 735, 751 (Tex. Crim. 

App. 1999).

Here, Mendez made the statements in response to questions from his common law wife 

about his involvement in the robbery. Statements made to loved ones or family members do not 

raise the same trustworthiness concerns as those made to investigating officers. Walter, 267 

S.W.3d at 898. Mendez’s guilt was not inconsistent with Gonzalez’s. And, the statements were 

further corroborated by other evidence that mirrored parts of Mendez’s account of the robbery. 

For example, other evidence showed that there were two armed assailants who entered the 

restaurant through the back door. We conclude there were sufficient corroborating circumstances 

that clearly indicated the trustworthiness of the statements. 

Gonzalez further contends that even if Hinojosa’s testimony was allowable under the

Rule 803(24) hearsay exception, the trial court should have disallowed it as unfairly prejudicial. 

Rule 403 of the Texas Rules of Evidence provides that evidence may be excluded if its probative 

value is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. When 

making the decision to exclude relevant evidence, a trial court must balance (1) the inherent 

probative force of the evidence, (2) the proponent’s need for the evidence, (3) any tendency of 

the evidence to suggest a decision on an improper basis, (4) any tendency of the evidence to 

confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given 

undue weight by a jury that is not equipped to evaluate the probative force of the evidence, and 

(6) the likelihood that presentation of the evidence will consume an inordinate amount of time or 

repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. 

App. 2006).
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It is clear from the record that Hinojosa’s testimony bore significant probative force and 

was valuable in proving the State’s case in chief. Gonzalez presented no evidence that this 

testimony suggested a decision on an improper basis, and it certainly did not distract the jury 

from the main issue of the trial. Gonzalez’s contention that Hinojosa was an unfit witness due to 

mental deficiency is unsupported by the record. Gonzalez elicited testimony from Hinojosa that 

she was treated for ADHD and bipolar disorder about four years before trial, but never 

introduced evidence of how this might affect her ability to accurately recall the events of her 

testimony. Gonzalez’s complaint appears to stem solely from the fact that the statements were 

damaging to his case. Unfair prejudice arises from evidence that suggests a decision on an 

improper basis, not from the mere fact that the evidence injures an opponent’s case. Casey v. 

State, 215 S.W.3d 870, 883 (Tex. Crim. App. 2007). Furthermore, under Rule 403 the trial court 

is afforded substantial discretion in balancing the probative value of the evidence against its 

prejudicial effect. Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim. App. 2006). We see nothing 

in the record that suggests the decision to include the testimony amounted to an abuse of this 

discretion.

We conclude that the trial court acted within the limits of Rule 803(24) in allowing 

Hinojosa’s testimony. We further conclude that the trial court did not abuse its discretion in 

denying Gonzalez’s request to disallow the testimony as unfairly prejudicial. We overrule 

Gonzalez’s fourth issue. 

DENIAL OF MOTION FOR MISTRIAL

In his fifth issue, Gonzalez argues the trial court erred in denying his motion for a 

mistrial. After the trial began, one of the jurors advised the trial court that her religious beliefs 

prevented her from sitting in judgment of another person. She told the trial court she had cried 
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when she was selected for the jury and she had been unable to eat or to think since the trial 

began. After explaining the situation to the prosecutor and the defense counsel, the trial court 

stated he believed the juror was “going through a disability” and he was “prepared to excuse her 

and find that, in fact, there is a disability...a disability that will not enable her to function as a 

juror in this case.” In response, defense counsel pointed out that during voir dire he had asked the 

prospective jurors if any of them knew of any reason why they could not be fair and impartial, 

and that this juror failed to bring up her religious beliefs. Defense counsel then advised the trial 

court that he thought the only solution was to declare a mistrial. The trial court denied the motion 

for mistrial, excused the disabled juror, and substituted an alternate juror in her place.

Whether a juror is disabled is within the discretion of the trial court. Rivera v. State, 12 

S.W.3d 572, 578 (Tex. App.—San Antonio 2000, pet. ref’d) (citing Brooks v. State, 990 S.W.2d 

278, 286 (Tex. Crim. App. 1999)). A juror is disabled only when he or she is physically, 

emotionally, or mentally impaired in some way that hinders the juror’s ability to perform his or 

her duty as a juror. Id. When a regular juror becomes unable or disqualified to perform his duties, 

Texas law requires that the disabled juror be replaced with the first alternate juror. TEX. CODE 

CRIM. PROC. ANN. art. 33.011(b) (West Supp. 2011). 

According to Gonzalez, the issue here is not about the juror having a disability but about 

the juror withholding information. Gonzalez argues that the juror withheld information about her 

religious beliefs during voir dire and in doing so interfered with his right to have his case heard 

by a fair and impartial jury. Relying primarily on Salazar v. State, Gonzalez argues the trial court 

was required to grant a mistrial instead of replacing the disabled juror with an alternate juror. 562 

S.W.2d 480, 482 (Tex. Crim. App. 1978). In Salazar, a juror failed to disclose on his juror 

information sheet and during voir dire that he had been a witness in another criminal case. Id. at 
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481-82. The trial court learned of the juror’s failure to disclose his past experience as a witness in 

a criminal trial, but nevertheless allowed the juror to remain on the jury. Id. The defendant 

moved for a mistrial, but the motion was denied. The Court of Criminal Appeals held the denial 

of the motion for mistrial was error because the defendant was denied the opportunity to strike 

the juror during voir dire. Id. at 482-83.

Gonzalez’s argument is premised on his assertion that the juror in this case, like the juror 

in Salazar, withheld material information. Thus, Gonzalez argues his case requires the same 

result as Salazar. We disagree. The juror in the present case was not asked about her religious 

convictions. Instead, during voir dire, defense counsel asked the jurors, “Do any of you know of 

any reason why you could not be fair and impartial if selected to serve on this particular case?”

This was a broad question, directed at the jurors’ partiality, rather than their religious beliefs or 

their ability to serve as jurors. Unlike the situation presented in Salazar, the juror in the present 

case did not withhold information. And, the juror’s conduct in no way affected Gonzalez’s right 

to have his case heard by a fair and impartial jury because the juror did not remain on the jury.

Here, the juror showed physical and emotional manifestations consistent with a juror 

disability. See Rivera, 12 S.W.3d at 578. Thus, the trial court did not abuse its discretion in 

finding the juror was disabled. See id. Thereafter, the trial court followed the proper procedure 

when it replaced the disabled juror with an alternate juror. See TEX. CODE CRIM. PROC. ANN. art. 

33.011(b). The trial court did not err in denying Gonzalez’s motion for mistrial. We overrule 

Gonzalez’s fifth issue.

INDICTMENTS

In his sixth issue, Gonzalez raises several complaints about the indictments. Gonzalez 

maintains the State failed to properly amend the indictments, and that his convictions for 
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engaging in organized criminal activity are void because the indictments never vested the trial 

court with jurisdiction over these offenses.

An indictment serves two functions: it provides a defendant notice of the charges against 

him and vests a trial court with jurisdiction. Cook v. State, 902 S.W.2d 471, 475 (Tex. Crim. 

App. 1995). To comprise an indictment sufficient to vest a trial court with jurisdiction, an 

instrument must charge a person with the commission of an offense. Id. at 477; TEX. CONST.

ANN. art. 5, § 12(b). But defects in an indictment, even substantive ones, do not deprive the trial 

court of subject-matter jurisdiction. Kirkpatrick v. State, 279 S.W.3d 324, 328-29 (Tex. Crim. 

App. 2009) (citing Teal v. State, 230 S.W.3d 172, 181-82 (Tex. Crim. App. 2007)); Cook, 902 

S.W.2d at 477. For example, an indictment is not void if it omits an element of the offense. 

Cook, 902 S.W.2d at 477. A charging instrument qualifies as an indictment if it “accuses 

someone of a crime with enough clarity and specificity to identify the penal statute under which 

the State intends to prosecute, even if the instrument is otherwise defective.” Duron v. State, 956 

S.W.2d 547, 550-51 (Tex. Crim. App. 1997). 

Section 71.02(a) of the Texas Penal Code, which defines the offense of engaging in 

organized criminal activity, provides in relevant part,

A person commits an offense if, with the intent to establish, maintain, or 

participate in a combination or in the profits of a combination or as a member of a 

criminal street gang, the person commits or conspires to commit...aggravated 

robbery...[or other enumerated offenses]. 

TEX. PENAL CODE ANN. § 71.02(a) (West 2011) (emphasis added). Thus, the offense of engaging 

in organized criminal activity can be committed in one of two ways: either the defendant can 

commit one or more of the offenses listed under section 71.02(a), or the defendant can conspire 

to commit one or more of these offenses. When the State alleges that a defendant has committed, 

rather than conspired to commit, one of the enumerated offenses, there is no requirement that the 
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State allege or prove the existence of any overt acts. Compare State v. Duke, 865 S.W.2d 466, 

467-68 (Tex. Crim. App. 1993) (concluding overt act allegation in indictment for engaging in 

organized criminal activity was not required when the indictment alleged the defendants had 

committed the illegal act), with Chambless v. State, 748 S.W.2d 251, 253 (Tex. App.—Tyler 

1988, no pet.) (concluding omission of overt act allegation from indictment for engaging in 

organized criminal activity was fundamental error when the indictment alleged the defendant had 

conspired to commit the illegal act). 

Here, the grand jury returned three separate indictments, one pertaining to each criminal 

transaction. Each of these indictments charged Gonzalez with multiple counts of aggravated 

robbery and one count of engaging in organized criminal activity by committing the offense of

aggravated robbery. More than three months before the trial began, the State moved to amend 

each of the indictments to allege the defendants committed the offense of engaging in organized 

criminal activity by conspiring to commit the offense of aggravated robbery and to allege overt 

acts.2

Almost six months before trial began, on July 13, 2009, the trial court signed an order 

granting the motion to amend the indictment pertaining to the Luby’s robbery. This order fully 

reproduced the original indictment with the amendment language. The record does not contain 

signed orders amending the indictments pertaining to the Glass Kitchen and Taco Palenque 

robberies, nor does it show the trial court amended the indictments themselves. Nevertheless, 

when the indictments were formally read before the jury, they included the amendment language 

set out in the motions to amend the indictments. The record does not show Gonzalez ever 

 2

The State filed three motions to amend the indictment. The motion to amend the indictment concerning the Luby’s 

robbery was filed on June 24, 2009. The motion to amend the indictment concerning the Glass Kitchen robbery was 

filed on July 14, 2009. The motion to amend the indictment concerning the Taco Palenque robbery was filed on 

October 6, 2009. Trial began on January 11, 2010.
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objected to the indictments as read before the jury, or otherwise complained about a failure to 

properly amend the indictments.

The crux of Gonzalez’s complaint is that the indictments for engaging in organized 

criminal activity were fatally defective because they failed to include any overt act allegations. 

In making this argument, Gonzalez asserts none of the indictments was properly amended3 and 

refers only to the original indictments. Even if we assume the indictments were not properly 

amended, the trial court would not have been deprived of jurisdiction. The original indictments 

charged Gonzalez with engaging in organized criminal activity by committing the illegal acts, 

not by conspiring to commit the illegal acts. Thus, these indictments were not required to include 

any overt act allegations. See Duke, 865 S.W.2d at 467-68 (concluding there was no overt act 

requirement when the indictment alleged the defendants had committed the illegal act). Further, 

the original indictments accuse Gonzalez with the commission of the offense of engaging in 

organized criminal activity with enough clarity and specificity to identify the penal statute under 

which the State intended to prosecute. See Duron, 956 S.W.2d at 550-51. We, therefore, 

conclude the trial court was vested with jurisdiction over the offenses of engaging in organized 

criminal activity. We overrule Gonzalez’s sixth issue.

CONCLUSION

The judgments of conviction are affirmed.

Karen Angelini, Justice

DO NOT PUBLISH

 3

The indictment concerning the Luby’s robbery was properly amended. See Aguilera v. State, 75 S.W.3d 60, 64 

(Tex. App.—San Antonio 2002, pet. ref’d) (holding the amendment of the indictment was effective when the trial 

court granted the State’s motion to amend and reproduced the language of the original indictment with the amended 

language in its order).