In the Court
of Criminal Appeals of Texas
Manuel Vasquez, Appellant,
The State of Texas
Appeal from Bexar County
delivered the opinion of the Court which MEYERS, PRICE,
WOMACK, KEASLER, HOLCOMB, AND COCHRAN, JJ., joined. JOHNSON, J.
concurred in the result. HERVEY, J. did not participate.
O P I N I O N
Appellant was convicted in November 1999 of the capital murder of
Pursuant to the jury's answers to the special issues set forth in
Texas Code of Criminal Procedure, Article 37.071, §§2(b) and 2(e),
the trial judge sentenced appellant to death.
(2) Direct appeal
to this Court is automatic.
raises four points of error. We will affirm.
1. Johnny Joe Cruz
The jury charge correctly identified Johnny Joe
Cruz as an accomplice as a matter of law. Although initially
charged with capital murder, Cruz pled guilty, pursuant to a plea
bargain, to aggravated robbery in exchange for a seven year prison
sentence. The terms of the bargain called for him to testify
truthfully at appellant's trial. Sentencing in Cruz's case was
delayed until after his testimony in appellant's prosecution.
According to Cruz, appellant was a member of
the Mexican Mafia. Two days before the incident giving rise to the
present prosecution, Oligario Lujan and appellant told Cruz that
Juanita Ybarra "had to go down" because she failed to pay the
"dime," a ten percent tax on the sale of illegal drugs collected
by the Mexican Mafia. The "hit" had been ordered by Rene Munoz, a
ranking member of the Mexican Mafia. Cruz testified that "had to
go down" were "street words" that meant that Ybarra had to be
killed. Cruz also testified that the plan included robbing Ybarra
as a means of collecting the ten percent owed.
Appellant had rented room 20 of the New Laredo
Motel. On the evening of March 18, 1998, Cruz and many others in
room 20 were partying, smoking marijuana, drinking beer, injecting
heroin, and snorting cocaine. At around 5:30 to 6:30 the next
morning appellant asked Michelle Rodriguez for her car keys.
Appellant, Cruz, and Lujan then headed toward room 15, where
Ybarra was staying. They carried bandannas to cover their faces
and socks to cover their hands to prevent fingerprints.
Lujan knocked on the door to room 15 while appellant and
Cruz ducked into adjacent room 16, the door to which was open, and
began putting on socks and bandannas.
Moses Bazan, Ybarra's boyfriend, opened the
door to room 15, leaving the chain locked. The three conspirators
forced their way through the door and the chain broke loose. Cruz
and Lujan wrestled Bazan to the floor while appellant held Ybarra
to the ground. During this struggle, Bazan broke a window, but he
soon lost consciousness. Appellant then asked for a telephone cord,
and Lujan gave him one. Using the cord, appellant strangled Ybarra.
Bazan regained consciousness and resumed struggling.
Lujan fought with Bazan while Cruz began gathering valuables,
including cameras and jewelry, and stuffing them into a pillowcase.
Appellant threw Lujan a kitchen knife, and Lujan moved to stab
Bazan but missed and hit the floor, bending the knife. During the
struggle, Bazan kicked a hole in the wall to adjacent room 16. At
that point, appellant joined the fight against Bazan and hit Bazan
on the head with a gun. Bazan lost consciousness again, and
appellant and Lujan began gathering valuables into pillowcases.
Soon they heard police sirens, and they left the room and drove
Rodriguez's car to George Martinez's house.
Because the three were covered in blood, they
changed clothes at Martinez's house. Appellant had been wearing
blue warmups during the crime. The three men then went to the
Mayfield Motel, where they watched the news and used some drugs.
After a couple of hours, they returned to Martinez's house. A
little while later, Cruz left in Rodriguez's car without his
companions but with several other people. Cruz picked up some food
at the store and then went to his mother's house.
According to Cruz, he was arrested later that
afternoon. However, a police officer later testified that Cruz was
arrested the following day, March 20. In closing argument, the
prosecutor conceded that Cruz's testimony in this regard was
Cruz admitted that he lied to the police in his initial statements.
He had falsely identified Lujan as Ybarra's killer because he was
afraid that appellant might place a hit on him. He also had
falsely stated that Lujan had bragged about the killing. And he
had made several false statements regarding his role in the
offense and what happened afterwards.
2. Moses Bazan
survived the attack and testified at trial. According to Bazan, he
and Ybarra occupied room 15 of the New Laredo Motel on March 18
and 19, 1998. Bazan testified that Ybarra was scared and nervous
that week and did not want to be alone. On the evening of the
18th, Bazan encountered Cruz, Lujan, and appellant in the parking
lot at various points in time. At 9:00 p.m. Bazan used some
cocaine. Ybarra drank a couple of beers and went
to bed. Bazan went to bed after midnight.
At around 3:00 a.m., Lujan knocked on the door, identified himself,
and told the occupants of the room to open the door. Bazan opened
the door and three or four men pushed the door open and burst into
the room. They had their faces covered by cloth,
(5) but Bazan was
able to identify three of them when the cloths were later removed.
Although Bazan offered to give the intruders his wallet, they
began slugging him. Appellant moved towards Ybarra, placed his
hands upon her, and tried to choke her. Cruz and Lujan tied
Bazan's legs and hands. Bazan was hit and kicked during the
struggle and some ribs on his left side were broken. Cruz stabbed
Bazan in the head with a knife and placed an extension cord around
Bazan's neck while Lujan attempted to choke Bazan with his hands.
At some point, Lujan took the knife from Cruz and began stabbing
Bazan or possibly hitting Bazan with a gun. Ybarra bit appellant
on the hand, and appellant yelled, "She's biting me!" Bazan then
saw and heard appellant strike Ybarra. Cruz went to assist
appellant. Ybarra yelled for help as appellant struck her over ten
times. Bazan also yelled for help while he was fighting with Cruz
and Lujan. During the struggle, Bazan broke a window and punched a
hole in the wall to adjacent room 16. Cruz went back and forth
between Bazan and Ybarra. While Cruz was attempting to strangle
him with an extension cord, Bazan saw appellant punching Ybarra
and heard her final cry before she died.
robbery, Bazan saw the conspirators gathering valuables. At some
point, after being stabbed numerous times, Bazan decided to play
dead and rolled his eyes back into his head so that only the
whites were showing. He heard a conversation in which someone said
they should cut Bazan into pieces and throw him into the lake.
However, the men were having difficulty moving Bazan, and one of
them said "Let's get out of here. We've been here too long." Bazan
lost consciousness at least twice during the robbery, once at the
very end. He subsequently awoke at 7:00 or 8:00 a.m., untied
himself, went to the motel manager's office, and asked the manager
to call 911.
Bazan testified that there was a fourth robber. He also testified,
however, that he had previously expressed some uncertainty to the
police on whether there was a fourth person. On redirect, he
testified that he had never identified a fourth person as one of
the robbers but he was sure of the three he had identified.
3. Detective Arnulfo Chavarria
Chavarria testified as an expert on the Mexican Mafia. He talked
about their practice of collecting the "dime," a ten percent tax
on illegal drugs, and he identified the tattoo on appellant's
chest as signifying appellant's membership in the organization.
4. Amalia Garcia
Garcia testified that she was present in room 20 on March 18th.
She saw appellant, Cruz, and Lujan leave with bandannas and motel
towels. Before they left, she heard one of them say "Let's go get
her" or "Let's go get" someone, and she saw appellant ask Michelle
Rodriguez for her car keys. On the morning of the
19th, Garcia was taken to the police station and
questioned. When asked who rented the motel room, she made up some
names because she did not want others to know she had told the
police anything. Later that day, she went to George Martinez's
house, where she saw appellant and also saw towel rags full of
5. Michelle Rodriguez
State's case-in-chief, Michelle Rodriguez testified that appellant
had rented room 20. She also testified that appellant borrowed her
car keys on March 18th and that the car had not been
returned by the time the police came to the motel room on the 19th.
When appellant borrowed the keys, he was wearing blue jeans and a
T-shirt. In the defense's case-in-chief, she testified that
appellant drove with her to the hospital on the evening of March
19, 1998. A hospital record showed that they were there at 6:56
p.m. She also testified that, when she arrived at Martinez's house
on the afternoon of the 19th, her car was there, but
she did not see appellant, who arrived later. She also did not see
any blood or injuries on appellant. She lent her car to Cruz on
the 20th, and she signed a consent to search form for
her car on the 21st, after Cruz had been arrested.
6. Police officers and medical testimony
several San Antonio police officers, the police were called at
around 8:30 a.m. concerning the incident in question. There were
socks tied around Bazan's legs, a shirt around his ankles, and a
clothesline wire around his neck. DNA testing was
conducted on clothes found in the trunk of Rodriguez's car. Bazan
could not be excluded as a contributor to a bloody shirt
and jacket found there. Appellant could not be excluded as a
contributor to blood found on a pair of shorts in that same
location. DNA testing under Ybarra's fingernails excluded
appellant and Lujan as the source of DNA but were inconclusive as
to Cruz's DNA. Medical testimony indicated that Ybarra's death
resulted from strangulation by a ligature (i.e. a cord-like object).
7. The Motel Manager
of the New Laredo Motel testified for the state regarding the days
various rooms were rented and to whom. On cross-examination, he
testified that, on March 19, 1998, the people in room 16 checked
out at about 7:45 a.m.
8. Mercedes Villarreal
Villarreal testified for the defense as an alibi witness. She had
been involved in an extramarital romantic relationship with
appellant. She was reluctant to testify because she had not wanted
her husband to discover the affair. According to Villarreal,
appellant called her between 5:30 and 6:00 a.m. on March 19, 1998.
He asked her to pick him up at the Easy Shop, a store that was
half a block away from the New Laredo Motel. She picked appellant
up between 6:30 and 6:45 a.m. (before taking her children to
school) and took him back to her house. He was wearing jeans,
tennis shoes, a T-shirt, and a cap, and she saw no injuries or
blood on him. Later, she saw news of the robbery and murder on
television and went back to her home, where she found appellant
asleep. At around 6:00 p.m., she took appellant to the Martinez
home. Villarreal also testified that she had visited appellant
twice in jail since he was arrested for the crime, and she
acknowledged appellant's membership in the Mexican Mafia.
9. Hector Galvan
Hector Galvan shared a jail pod with Cruz after Cruz had been
arrested in connection with the present offense. According to
Galvan, Cruz told him that appellant had nothing to do with the
crime but that Cruz was trying to mislead investigators away from
himself. Galvan denied being a member of the Mexican Mafia, and he
denied ever signing a form acknowledging his membership. However,
he did admit that TDC
listed him as a confirmed member. He
also acknowledged that appellant is a member of the Mexican Mafia.
As a State's
rebuttal witness, Detective Chavarria testified that Galvan is a
member of the Mexican Mafia and that Galvan had signed a TDC form
admitting that he was a member.
10. Dr. James Garriott, M.D.
testified for the defense about the effects of drug consumption on
perception. He testified that cocaine can adversely affect
perception, cause hallucinations, and cause someone to have a
psychotic episode. Someone using cocaine can forget things that
happened and "remember" other things that did not happen. A
cocaine user can also seriously misjudge the passage of time. He
also testified that marijuana and heroin use can alter a person's
perception of events. On cross-examination, he conceded that, if a
person injected a small amount of cocaine at 9:00 in the evening,
he would not still be feeling the effects of that cocaine at 6:00
the next morning.
11. Jury Charge
The jury charge alleged murder in the course of robbery as the
State's theory of capital murder. The "intent to promote or assist"
theory of the law of parties was included in the jury charge.
1. Sufficiency of the evidence
In point of
error two, appellant challenges the sufficiency of the evidence.
His claim concerns three categories of sufficiency: accomplice
witness corroboration, legal sufficiency, and factual sufficiency.
a. Accomplice testimony
First, appellant contends that there is insufficient evidence to
corroborate Cruz's accomplice witness testimony. Article 38.14
provides that a conviction cannot stand on accomplice testimony
unless there is other evidence tending to connect the defendant to
(9) The non-accomplice
evidence need not be sufficient, in itself, to support a
conviction, and the accomplice witness rule is not governed by
federal or state constitutional standards.
following non-accomplice evidence tends to connect appellant to
Bazan testified that appellant was one of the robbers, that he was
Ybarra's primary assailant, that he hit Ybarra numerous times, and
that he was hitting Ybarra when she uttered her last cry before
Garcia testified that appellant was with Cruz and Lujan and that
one of them said "Let's go get her" or "Let's go get" someone.
and Michelle Rodriguez testified that appellant borrowed
Rodriguez's car keys on the evening before the murder. Clothes
with Bazan's blood on them were found in the trunk of Rodriguez's
requirements of the accomplice witness rule were satisfied.
b. Legal and factual sufficiency
Next, appellant contends that the evidence is legally and
factually insufficient to support his conviction. In reviewing
legal sufficiency, this Court looks at all of the evidence in the
light most favorable to the prosecution to determine whether any
rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt.
(11) In reviewing
factual sufficiency, we look at all of the evidence in a neutral
light, and will reverse only if the evidence supporting guilt is
so obviously weak as to render the conviction clearly wrong and
manifestly unjust, or if that evidence, although adequate when
taken alone, is so greatly outweighed by the overwhelming weight
of contrary evidence as to render the conviction clearly wrong and
(12) Although a
reviewing court has, in a factual sufficiency review, some
authority to disregard evidence that supports the verdict, it must
be appropriately deferential so as to avoid substituting its own
judgment for that of the fact finder.
reviewing court should not substantially intrude upon the jury's
role as the sole judge of the weight and credibility of witness
Appellant's claim is that the evidence is insufficient to
establish his identity as one of the perpetrators. He bases his
claim on a number of factors, but we find none of these to be
persuasive. He first contends that Bazan's identification of
appellant as the assailant was questionable. Appellant challenges
Bazan's credibility due to his drug use. He focuses on the fact
that Bazan did not actually see appellant strangle Ybarra and that
Bazan testified that Cruz helped appellant restrain Ybarra. Even
if we concluded that Bazan was under the influence of cocaine at
the time the assault occurred, that would not render the evidence
legally insufficient. A rational jury could believe that he
accurately identified appellant as one of the robbers despite the
drug's influence. Even under a factual sufficiency review, the
influence of an illegal drug would be but a factor to consider.
the defense's own expert conceded that the effects of a small
cocaine dose taken at 9:00 in the evening would not still be felt
at 6:00 the following morning. If Cruz's testimony about the time
of the robbery is correct, Bazan would not still be under the
influence of cocaine. Even if Bazan's testimony that the robbery
occurred at 3:00 in the morning is correct, a factfinder would be
well within its discretion to believe that the effects of the
cocaine had sufficiently worn off to enable an accurate
appellant's claim that Bazan did not actually see appellant
strangle the victim, the State did not have to prove that
appellant personally killed Ybarra. The jury was charged on the
law of parties, and Bazan's testimony was more than sufficient to
establish appellant's guilt as a party. Even so, Bazan did testify
that appellant was the only person around Ybarra when she cried
out the last time before she died and that appellant was
assaulting her at the time.
appellant claims that Cruz was the sole witness to articulate the
"el dime" motive for the crime. Appellant is incorrect. Cruz's
testimony is the only direct evidence of that motive, but the
testimony of several other witnesses combined gives circumstantial
support for that motive. Other witnesses testified that appellant
was a member of the Mexican Mafia. And Detective Chavarria
testified that the Mexican Mafia collected this "el dime" from
Third, appellant contends that Cruz gave false and misleading
testimony concerning the timeline of events. This claim appears to
be a reference to Cruz's inaccurate testimony concerning the date
of his arrest. Cruz did testify that he used drugs after the crime,
and a defense expert did testify to the distorting effects of
drugs on a person's sense of time. The factfinder was free to
believe Cruz's inaccurate testimony was an honest mistake, brought
on by intoxication, or by the dimming of memory through the
passage of time, rather than a lie. Appellant may also be
referring to conflicts between Cruz's and Bazan's testimony
concerning the timing of events. Even under a factual sufficiency
review, however, we generally defer to the factfinder's resolution
of conflicting witness testimony.
appellant contends that he offered a credible alibi. His alibi
witness was a former lover who visited appellant in jail twice
after he was charged. The jury could have disbelieved her
testimony, believing her to be biased. But even if the jury
believed her testimony, that testimony does not preclude
appellant's commission of the crime. Even if the robbery began
during the 5:30 to 6:30 time frame cited by Cruz (instead of at
3:00, testified to by Bazan), there would have been sufficient
time for appellant to change clothes and walk to the Easy Shop,
only a half-block away - although this testimony does conflict
with Cruz's testimony about the events taking place after the
appellant contends that both a State's witness and the alibi
witness described appellant wearing the same clothing. This claim
is apparently a reference to Rodriguez's testimony that appellant
wore blue jeans and a T-shirt and Mercedes's testimony that
appellant wore jeans, a T-shirt, tennis shoes, and a cap. Although
the rather generic "jeans and a T-shirt" testimony of each witness
shows appellant wearing similar clothing, it does not
establish that he wore the same clothing. Moreover,
Rodriguez described appellant's clothing at the time he asked her
for the keys to her car. Appellant could have put on the blue
warmups described by Cruz after asking for the keys and then taken
them off later. Or the jury could simply have disbelieved
appellant contends that Cruz's testimony conflicts with that of
other witnesses: the motel manager's testimony that the guests in
room 16 did not check out until 7:45; Bazan's testimony that
Lujan, not appellant, hit Bazan in the head with a weapon; and
Bazan's testimony that Cruz, not appellant, stabbed Bazan in the
head. Even if these statements did conflict, such conflicting
testimony is of the type normally resolved by a factfinder.
appellant contends that Cruz was the only person not excluded as a
donor of the DNA under the victim's fingernails. The expert
testified, however, that the test of Cruz's DNA was inconclusive -
Cruz was neither excluded nor included.
What we have
in the present case is the testimony of two eyewitnesses who
placed appellant at the scene of the crime, as a participant in
the robbery, and as Ybarra's killer. A different witness testified
to overhearing a conversation between appellant and his cohorts
that was consistent with a planned murder. Several witnesses
testified that appellant was a member of the Mexican Mafia, and
there was testimony that the Mexican Mafia collected money from
drug dealers, that Ybarra was a drug dealer, and that she was
especially nervous or frightened the week before her murder. In
the trunk of a car appellant borrowed shortly before the crime,
authorities found clothing that contained appellant's blood and
other clothing that contained Bazan's blood.
Appellant raises potential conflicts in the testimony of various
witnesses, a biased alibi witness whose alibi is not watertight,
questions regarding the timeframe for when the events occurred,
questions about the honesty and reliability of the accomplice
witness, questions concerning the reliability of the surviving
victim's testimony, and the inconclusive DNA evidence.
examined all the evidence in the light most favorable to the
verdict, we find that a rational jury could have found appellant
guilty of the crime. Moreover, after examining the evidence in a
neutral light, we find that the supporting evidence is not so weak
- nor is the contrary evidence so overwhelmingly strong - as to
render the verdict clearly wrong and manifestly unjust. The
evidence is legally and factually sufficient to support the
conviction. Point of error two is overruled.
2. Perjured testimony
In point of error one, appellant contends that the State used
perjured testimony in violation of due process.
Fourteenth Amendment prohibits the knowing use of perjured
testimony by the prosecution.
(19) Even when
the prosecutor does not instigate the perjury, he is obligated to
correct any perjured testimony given by one of his witnesses.
The testimony at issue concerns the date of Cruz's arrest. At
trial Cruz testified that he was arrested on March 19. Appellant
claims that this testimony was a lie because Cruz was actually
arrested on March 20. He further claims that the prosecutor knew
that the testimony was a lie because a police officer later
testified, under cross-examination, that Cruz was arrested on
March 20. In closing argument, the prosecutor conceded that Cruz's
testimony in this regard was inaccurate.
Appellant has failed to demonstrate that Cruz lied about the date
of the arrest. Under the evidence in this case, it is possible
that Cruz was simply mistaken. Even if the testimony was a lie,
the State corrected the false testimony in its closing argument.
At best, appellant's claim boils down to an argument that the
State was tardy in correcting the false testimony.
However, appellant has failed to demonstrate any prejudice from
the tardiness of the correction.
Defense counsel was able to elicit the correct
information from another State's witness and was able to use the
information in closing argument not only to support his theory of
the case, but also to attack Cruz's credibility. Point of error
one is overruled.
3. "Mexican Mafia" evidence
In point of error three, appellant contends that the trial court
erred in admitting evidence of appellant's affiliation with the
Mexican Mafia. He cites Rules 401, 402, 403, 404(a), 608, 609, and
(23) He does not
explain how Rules 608, 609, and 702 were violated by the evidence
in this case, so we will not address those rules. As for Rules
401, 402, and 404, we hold that gang-affiliation is relevant to
show a motive for a gang-related crime. In Medina v. State,
we held that extraneous offenses committed by a gang at a
particular home were relevant to show that the home was a target
of the gang, and therefore, that the defendant, who was a member
of the gang, had a motive to commit the offense.
(24) In the
present case, the connection was even more direct: the evidence in
question was appellant's affiliation with the gang, and that
evidence was used to show a motive for an allegedly gang-related
Appellant cites Medina and appears to
concede that the evidence is relevant; however, he claims a
violation of Rule 403. But this claim is
unavailing. To violate Rule 403, it is not enough that the
evidence is "prejudicial" - it must be unfairly
Unfair prejudice occurs when the evidence has "an
undue tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one."
potential improper basis would be the use of gang affiliation to
show that appellant was a bad person and that he acted in
conformity with his bad character. However, the trial court did
not err in finding that this potential character conformity
inference does not substantially outweigh the relevant purpose of
showing motive for the robbery and murder. Point of error three is
4. Motion for continuance
In point of error four, appellant contends that
the trial court erred in denying his motion for continuance. On
October 25, 1999, after the parties qualified nine jurors on
individual voir dire, the State informed the defense that Cruz
would be testifying for the State at appellant's trial. The State
said that it would provide appellant with Cruz's revised statement
and the terms of the plea agreement between the State and Cruz. At
defense counsel's request, the State orally informed counsel of
the terms of the agreement. That same day, defense counsel filed a
motion for continuance. The motion was denied, and trial began on
November 2, 1999. The record also reflects that defense counsel
was aware before voir dire began that the State was attempting to
secure Cruz's cooperation.
The trial court's ruling on a motion for
continuance is reviewed for abuse of discretion.
(27) To establish
an abuse of discretion, the defendant must show that he was
actually prejudiced by the denial of his motion.
points to three prejudicial effects of the trial court's failure
to grant a continuance: (1) defense counsel was unable to voir
dire three-fourths of the jurors on the accomplice witness rule,
(2) defense counsel was surprised by the introduction of a new
theory of the case - the Mexican Mafia motive, and (3) Cruz's
credibility was crucial to the State's case.
Defense counsel should have anticipated the
possibility that Cruz could become a witness, as it is not
uncommon for a co-defendant to turn State's evidence for a
favorable deal. Moreover, appellant's counsel was aware before
voir dire that the State was attempting to procure Cruz's
testimony, and so the astute trial judge was correct in observing
that it was defense counsel's decision to refrain from voir dire
on the accomplice witness rule. In addition, from the time the
State made its announcement, the defense still had eight days -
including a weekend - to prepare for this testimony. And the
defense was able to procure witnesses to counter Cruz's testimony,
including: Galvan's testimony that Cruz admitted his own guilt
while exonerating appellant, evidence that Cruz gave the wrong
date of arrest, and inconsistencies between some of the details
given by Cruz and those given by Bazan, Rodriguez, and Mercedes.
Appellant does not show that he was unable to procure a helpful
witness who would have countered some aspect of Cruz's testimony
that he could have procured had he been granted a continuance.
Finally, the State was able to connect appellant to the Mexican
Mafia through the testimony of Detective Chavarria, who identified
appellant as a member from his tattoo. Appellant has failed to
show that he was prejudiced by the trial court's ruling. Point of
error four is overruled.
The judgment of the trial court is affirmed.
KELLER, Presiding Judge
Date delivered: February 6, 2002
1. Texas Penal Code
§19.03(a)(2): "A person commits an offense if he commits murder as
defined under Section 19.02(b)(1) and...the person intentionally
commits the murder in the course of committing or attempting to
2. Article 37.071, §2(g).
Unless otherwise indicated all future references to Articles refer
to the Code of Criminal Procedure.
3. Article 37.071 §2(h).
4. The prosecutor stated:
Now, if according to the Defendant's theory the
State spoon-fed Johnny Joe this story, well, we could have done a
better job, couldn't we? There are some inconsistencies. There is
the screw-up about the date of the arrest. Okay? When we talk to
witnesses, we take what they tell us and we work with it. Okay?
Yeah, there was a screw-up. There's a day lost. But what you've
got [sic] remember is that these guys, Lujan, Johnny Joe and "Meme"
were all junkies. They were shooting heroin, they were shooting
cocaine. And yeah, Johnny Joe may not have his time sequence down
right, and I will concede that.
5. In cross-examination,
Bazan indicated that Lujan and Cruz were not wearing masks when
Bazan looked out the window before opening the door.
6. In earlier direct
testimony, Bazan seemed to indicate that Cruz was helping
appellant when Ybarra uttered her final cry, but on cross-examination,
Bazan maintained that Cruz was trying to strangle him at that
7. Abbreviation for Texas
Department of Corrections, now known as the Texas Department of
Criminal Justice - Institutional Division.
8. Texas Penal Code
§7.02(a)(2): "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."
9. Cathey v. State,
992 S.W.2d 460, 462 (Tex. Crim. App. 1999), cert. denied,
528 U.S. 1082 (2000). Article 38.14 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."
10. Id. at
11. Jackson v. Virginia,
443 U.S. 307 (1979).
12. Johnson v. State,
23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
13. Wesbrook v. State,
29 S.W.3d 103, 112 (Tex. Crim. App. 2000), cert. denied,
121 S. Ct. 1407 (2001).
15. See Cain v. State,
958 S.W.2d 404, 409 (Tex. Crim. App. 1997).
16. Id. at
17. We note that, although
appellant does not refer to it in his brief, he also introduced
the testimony of Galvan who stated that Cruz claimed
responsibility for the murder and exonerated appellant. The jury
was free to believe that Galvan was a member of the Mexican Mafia
and was covering for a fellow member. Considering Galvan's
testimony that he never signed a form acknowledging his membership
along with Chavarria's testimony that Galvan did sign such a form,
the jury could believe that Galvan was a perjurer, and
consequently, that his testimony could not be trusted.
18. See United
States Constitution, Fourteenth Amendment, §1, Cl. 3: "nor shall
any State deprive any person of life, liberty, or property,
without due process of law."
19. United States v.
Bagley, 473 U.S. 667, 678-679 (1985). A due process violation
is established if the prosecutor knowingly uses perjured testimony
and the reviewing court cannot determine beyond a reasonable doubt
that the testimony was harmless. Id. at 679 n. 9.
20. Id. at 678;
Ex Parte Castellano, 863 S.W.2d 476, 480 (Tex. Crim. App.
21. See fn. 4,
22. See Little v. State,
991 S.W.2d 864, 867 (Tex. Crim. App. 1999).
23. All references to rules
are to the Texas Rules of Evidence unless otherwise indicated.
24. Medina v. State,
7 S.W.3d 633, 643 (Tex. Crim. App. 1999), cert denied,
529 U.S. 1102 (2000). Although we declined to address the Rule
404(b) issue in Medina because it was unpreserved, the
discussion of relevance to appellant's motive applies equally in
the Rule 404(b) context. See Rule 404(b)("Evidence of
other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such
as proof of motive....").
25. Rogers v. State,
991 S.W.2d 263, 266 (Tex. Crim. App. 1999).
26. Id. (quoting
Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App.
1993)(citing 1 Steven Goode et al, Texas Practice: Guide to the
Texas Rules of Evidence: Civil and Criminal § 403.2, at 93 (2d ed.1993))).
27. Janecka v. State,
937 S.W.2d 456, 468 (Tex. Crim. App. 1996).