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Hernandez v. State

Court of Appeals of Texas, Fourth District, San Antonio

July 31, 2019

Efrain Leonel HERNANDEZ, Appellant
v.
The STATE of Texas, Appellee

          From the 406th Judicial District Court, Webb County, Texas Trial Court No. 2016-CRN-000241-D4 Honorable Oscar J. Hale, Jr., Judge Presiding

          Sitting: Luz Elena D. Chapa, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice

          OPINION

          LIZA A. RODRIGUEZ, JUSTICE

         After a jury trial, Appellant Efrain Leonel Hernandez ("Hernandez") was found guilty of felony murder and sentenced to forty-five years of imprisonment. On appeal, he brings four issues: (1) whether accomplice-witness testimony was corroborated by other evidence; (2) whether the trial court abused its discretion in allowing inadmissible hearsay; (3) whether the trial court's jury charge contained error and Hernandez suffered egregious harm as a result; and (4) whether the trial court abused its discretion in denying his motion for continuance. We affirm.

         Facts

         On Saturday, November 14, 2015, Christopher Benavides was working as a security guard and parking attendant at Rumors Country Bar ("Rumors") in Laredo, Texas. Because he was feeling sick from a cold, he decided to call his wife to pick him up. At about 10:30 p.m. that night, his father, Hector Benavides Sr. ("Mr. Benavides"), arrived to work the parking lot with Christopher. After 10:30 p.m., Christopher and his father began the process of charging people to park by using cones to reserve parking spots. Christopher testified he and his father had sold a couple of parking spots and needed to make change. As Christopher was leaving to get change, he saw a dark pick-up truck enter the parking lot. A moment later, he heard a man "disrespecting [his] father." Christopher asked his father, "What's this dude's problem?" The man began reversing his pick-up truck while "yapping his mouth." In response, Christopher hit the truck on the driver's side. The man hit his brakes "hard" and opened the door to his truck. The man said, "Don't be hitting my f--king [truck]." The man then reached down to the "side pocket" of the truck's door. Because Christopher thought the man was reaching for a handgun, Christopher moved forward, grabbed the door to the pick-up truck, and "opened it more." Christopher testified he grabbed the man's arm and pulled his arm down to hold him. Christopher saw a woman sitting in the truck and looked around for others. According to Christopher, the man "had tattoos," was wearing "a blue shirt," and "was short." Christopher testified he did not "get a good look at [the man's] face because [Christopher] was in shock looking for a weapon." According to Christopher,

And then he kept trying to fight, telling me off. At that moment, I threw a punch at him and I punched him. . . . And when I punched him, he-with this hand he moved the truck that way and he threw the truck at me, so when he passed forward like that, I hit the back of his truck and he took off real slow. . . . He went around this way-yes-this way real slow. . . . So, I'm following him, walking behind the truck while he's telling me off and telling me shit . . . . And then when he turns here, I cut through the cars here and he's still telling me shit and I remember-like yeah, we were already heated and he was telling me off . . . and I just told him . . ., "Go ahead and f--k your mother you f--king short . . . midget."

         The man stopped, opened his door, and replied, "Follow me asshole. Follow me." Christopher then said, "Just get the f--k out of here. Get out of here."

         Christopher called his brother, Hector Benavides Jr., and told him about the incident. According to Christopher, Hector said he would be there shortly. Christopher testified that when his wife arrived to take him home, he was still feeling sick, but did not want to leave his father alone. When his brother arrived, his father told him to go home, reassuring Christopher that his brother was there and the bouncers for Rumors were also nearby at the front entrance. Christopher left. A short while later, he received a phone call from his brother who was screaming that his father had been "jumped" by some men and was severely beaten. Christopher raced back to Rumors and saw the ambulance blocking the entrance. His father later died from his injuries.

         The medical examiner testified that most of Mr. Benavides's injuries were "mainly in the head and in the face area." "[T]here were some other injuries in the chest and hands and knees a little bit, but the main area was the head." Mr. Benavides had "raccoon eyes," which was caused by a skull fracture that led to internal bleeding. The top of Mr. Benavides's chest had a "small" "tube-type mark," which the medical examiner concluded was caused by an object. Mr. Benavides suffered from rib fractures, skull fractures, and internal bleeding. The medical examiner concluded that Mr. Benavides died as a result of "multiple blunt force injuries and in the background of preexisting cardiovascular disease or heart disease."

         Patrick Mendoza, a delivery driver for a pizza restaurant located in the same shopping plaza as Rumors, testified he saw the attack on Christopher's father. According to Mendoza, Mr. Benavides was alone, sitting on a chair, when he got up to attend a car. After Mr. Benavides finished with the car, Mendoza saw a "group of individuals" walk towards Mr. Benavides. Three men approached Mr. Benavides while two men stayed back. Mendoza testified he felt uneasy because the two men stared at him. According to Mendoza, the other three men surrounded Mr. Benavides, and one of them yelled at Mr. Benavides, "Where's the other one?" Mendoza then saw one of the men "swing" at Mr. Benavides. Mendoza testified he saw this man clearly and described the man as "kind of short," "bald," and "wearing a blue shirt." However, Mendoza testified he could not see the other two men clearly. The short man continued to hit Mr. Benavides "aggressively." Mr. Benavides tried to get away, but the man standing behind Mr. Benavides grabbed his jacket and pulled him back behind the cars. Mendoza testified this man was taller than the other two and was wearing a polo shirt, which Mendoza thought was white. As the men moved behind the cars, Mendoza went back to the pizza restaurant to call the police. Mendoza testified that the other two men were "just standing, watching" and did not seem upset. They did not try to stop the attack. When Mendoza went back outside, he saw all five men running away. Mr. Benavides was "gargling," and there was blood underneath his mouth.

         Mendoza was later shown a photo lineup by Investigator Anthony Carillo of the Laredo Police Department. Mendoza identified Justin Hernandez, appellant's brother, as the short man in the blue shirt who first punched Mr. Benavides.

         Leticia Ayala testified that she also saw the attack on Mr. Benavides. According to Ayala, on November 14, 2015, she went to Rumors to meet a friend. She parked in an open spot as directed by Mr. Benavides. Going through her purse, she realized she did not have any cash to pay for parking. Mr. Benavides replied, "That's fine, just give it to me in a moment." He then walked away. Ayala picked up her phone to text her friend that she was outside when she "started hearing noises, like gravel on the floor, like [she] could just hear commotion." Ayala looked in her rearview mirror and "just saw action, people fighting." When she got out of her car, there were three men surrounding Mr. Benavides:

They were all hitting him at once, and Mr. Benavides was fighting back, and they wouldn't stop. They kept hitting and hitting and hitting. Some-some were hitting, some were punching him, some were hitting him with an object and I kept calling the bouncers' attention and for them to turn to tell them that they were hitting Mr. Benavides and they couldn't hear me. . . . The bouncers were right by the entrance; the music was loud.

         Ayala testified that the men had Mr. Benavides between the cars. Mr. Benavides was trying to fight back and was covering his face to protect himself, but the men "kept punching and kicking him." She then saw Mr. Benavides slide toward the ground. Ayala testified she kept screaming at the men, "Stop it, stop it, stop it." Mr. Benavides "was kind of like in a fetal position on the floor" and the men "kept kicking and punching and hitting him with an object." She then heard two of the men tell the other one that they needed to leave. According to Ayala, one of the men took out some money, threw it on Mr. Benavides's chest, and said "Here's your f--king money."

         Ayala described the men as "two short guys and a tall guy." The tall man was wearing a white shirt, one of the short men was wearing a "patterned shirt," and the other short man was wearing a solid shirt, which Ayala described as kind of a "Navyish," "darkish" color. Ayala testified the "short guy" threw the money, and the "tall one" yelled at her, "F--king bitch, you're going to get it." She saw the men run away. She ran to Mr. Benavides to help him. "His face was changing and he couldn't talk. He was just like moaning and taking deep breaths like that was it." Ayala told the police what she had seen and then left. When she was later shown a photo lineup, she was not able to identify anyone.

         Rochelle Tellez testified that on November 14, 2015, she and her boyfriend, Roberto, met her friends Sara Hernandez and Belinda Martinez, along with their respective husbands (Appellant Efrain Hernandez and Felipe Arizpe-Rosales) at Rumors sometime between 10 p.m. and 11 p.m. They got some drinks and took some pictures. They had been at Rumors for about twenty minutes when Sara and her husband, Appellant Efrain Hernandez, decided to leave "because something had happened to Efrain's brother," Justin Hernandez. "They" told Tellez and her boyfriend they were going to another bar, TKO.[1] According to Tellez, after Sara and Hernandez left, Belinda asked her where they had gone. Tellez told Belinda "they had left because something had happened with-with Efrain's brother." Belinda replied, "Well, let's go over there." Tellez said she would let them know if she and her boyfriend decided to go to TKO. Belinda and her husband, Felipe Arizpe-Rosales, then left. Tellez and her boyfriend stayed another ten to fifteen minutes before they decided to go meet up with the others at TKO.

         Tellez testified that when she and her boyfriend arrived at TKO, they saw Sara, Belinda, and the wife of Justin Hernandez. Tellez did not, however, see any of the men. Tellez asked Belinda where her husband was. According to Tellez, she learned "that the guys had left to go back to Rumors because they were upset about something that had happened to Efrain's brother's truck." Tellez said the women "were like scared and nervous." The women remained at TKO for five or ten more minutes and then left "to go check on their guys to see what had happened." Tellez testified she and her boyfriend stayed at TKO for another twenty minutes before they also left. On the way home, Tellez passed by Rumors because she wanted to see "if something big had happened." There were "already ambulances and cops." She messaged Sara and Belinda, asking them what had happened. Tellez testified that "[t]hey" messaged her "that shit had gone down so [she] was kind of worried and stuff."

         Tellez later learned from her father what had happened to Mr. Benavides. In a group message, she asked Sara and Belinda "if they were involved." "They" replied that "they had nothing to do [with it]." However, about a week later, she was in a class with Belinda when Belinda said, "I have to tell you-I have to tell you what happened." Tellez testified she asked Belinda to not say anything. Nevertheless, Belinda told Tellez that Felipe, Efrain, and Justin "had gone and- like, I guess, fight Mr. Benavides."

         Belinda's husband, Felipe Arizpe-Rosales, testified at trial that on November 14, 2015, he arrived at Rumors with Belinda in his pick-up truck to meet his wife's friends and their respective husbands. Because he parked on the side of a street, he had no contact with Mr. Benavides. While at Rumors, the group took pictures. In the photos, Felipe testified he was wearing a light blue shirt, and Hernandez was wearing a black shirt. According to Felipe, Hernandez's brother, Justin, was supposed to meet the group at Rumors, but did not show. Hernandez and his wife, Sara, then left Rumors by themselves. Belinda suggested they should follow Hernandez and Sara to TKO. Felipe testified that when he and Belinda arrived at TKO, he went to the restroom and saw Hernandez and his brother Justin. They were talking about how, at Rumors, Justin had been hit in the face and his truck had also been hit. They told Felipe they wanted to go back to Rumors "to talk with the owner so they could resolve the problem with the [person who] had hit Justin." Felipe, Justin, and Hernandez then left in Justin's truck. Justin parked his truck away from the Rumors parking lot. According to Felipe, he stayed behind while Hernandez and Justin approached Mr. Benavides in the parking lot. Felipe testified Hernandez and Justin began talking to Mr. Benavides in a "normal" voice when "all of a sudden" Justin punched Mr. Benavides in the face. Felipe then saw Justin and Hernandez hitting Mr. Benavides who tried to get away. Felipe testified he moved toward Justin and Hernandez to stop them. Felipe then saw Mr. Benavides fall to the ground while Justin and Hernandez continued to kick Mr. Benavides. When they stopped, Felipe ran back to where Justin's truck was parked. According to Felipe, Justin was behind him; Hernandez arrived a few moments later. They then went to Hernandez's house where Belinda later picked up Felipe. Felipe testified that they also took pictures at Hernandez's house after the attack. He admitted he, Hernandez, and Justin were all smiling in the pictures.

         Investigator Anthony Carillo testified that on November 14, 2015, he spoke to Leticia Ayala and Christopher Benavides regarding the attack on Mr. Benavides. About two weeks later, he received a tip when a man called and said his daughter had information relating to the men who had attacked Mr. Benavides. The next day, Investigator Carillo met with Rochelle Tellez, and she gave him the names of Efrain Hernandez, Justin Hernandez, and Felipe Arizpe-Rosales. Investigator Carillo then spoke with Felipe, who stated he had witnessed Hernandez and Justin attack Mr. Benavides "because of the prior incident that happened in the parking [over] the charging [of] fees." Investigator Carillo then prepared photo lineups for Christopher Benavides, Leticia Ayala, and Patrick Mendoza. Patrick Mendoza identified Justin Hernandez. No one identified Appellant Efrain Hernandez. Investigator Carillo also testified that pursuant to a search warrant, police seized from Hernandez's home a long-sleeved black shirt that matched the shirt Hernandez was seen wearing in photos taken on the night of the attack.

         Corroboration of Accomplice-Witness Testimony

         "An accomplice is a person who participates in the offense before, during, or after its commission with the requisite mental state." Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). A witness is an accomplice as a matter of law in the following situations:

• If the witness has been charged with the same offense as the defendant or a lesser-included offense;
• If the State charges a witness with the same offense as the defendant or a lesser-included of that offense, but dismisses the charges in exchange for the witness's testimony against the defendant; and
• When the evidence is uncontradicted or so one-sided that no reasonable juror could conclude that the witness was not an accomplice.

Ash v. State, 533 S.W.3d 878, 886 (Tex. Crim. App. 2017). In this case, Felipe Arizpe-Rosales was indicted as a co-defendant and stated at trial that he was not testifying for the State in hopes of reducing his punishment. Therefore, he was an accomplice as a matter of law.

         On appeal, Hernandez argues the evidence is legally insufficient under Jackson v. Virginia, 443 U.S. 307 (1979), because there is no evidence that tends to connect Hernandez to the commission of the offense under the accomplice-witness rule. Hernandez, however, is conflating two separate issues: (1) whether the evidence is legally sufficient to support his conviction under Jackson v. Virginia, and (2) whether the accomplice-witness evidence is sufficiency corroborated under article 38.14 of the Texas Code of Criminal Procedure.

         A. Jackson v. Virginia Legal Sufficiency Standard

         Under the Jackson v. Virginia sufficiency standard, uncorroborated accomplice witness testimony "can be sufficient to support a conviction." Taylor v. State, 10 S.W.3d 673, 684-85 (Tex. Crim. App. 2000); see also Ramos v. State, No. 04-17-00669-CR, 2019 WL 1779861, at *2 (Tex. App.-San Antonio Apr. 24, 2019, no pet. h.). That is, in a legal sufficiency review, we consider all the evidence-even improperly admitted evidence. See Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004) ("In applying the Jackson sufficiency review, an appellate court must consider all evidence which the jury was permitted, whether rightly or wrongly, to consider.") (emphasis in original) (citations omitted); see also Ramos, 2019 WL 1779861, at *2. Thus, for purposes of our legal sufficiency review under Jackson v. Virginia, we consider the accomplice-witness evidence presented by Felipe.

         In assessing the legal sufficiency of the evidence, we consider all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). This standard recognizes the jury's role "as the sole judge of the weight and credibility of the evidence after drawing reasonable inferences from the evidence." Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). Further, when we review the legal sufficiency of the evidence, "we compare the elements of the crime as defined by the hypothetically correct jury charge to the evidence adduced at trial." Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014). "A hypothetically correct jury charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. (citations omitted). The "'law as authorized by the indictment' consists of the statutory elements of the offense and those elements as modified by the indictment." Id.

As authorized by the indictment in this case, a person commits felony murder if he
commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of the individual.

Tex. Penal Code Ann. § 19.02(b)(3). The underlying felony was aggravated assault by intentionally or knowingly causing serious bodily injury to another. See id. §§ 22.01(a)(1), 22.02(a)(1); see also Lawson v. State, 64 S.W.3d 396, 397 (Tex. Crim. App. 2001). In considering all the evidence presented to the jury, including the accomplice-witness evidence, there is more than sufficient evidence to show Hernandez committed aggravated assault by intentionally or knowingly causing serious bodily injury to Mr. Benavides, and in the course of and in furtherance of the commission of aggravated assault, committed an act clearly dangerous to human life, i.e. hitting and kicking Mr. Benavides, that caused the death of Mr. Benavides. Thus, we hold the evidence is legally sufficient to support Hernandez's conviction for felony murder.

         B. Accomplice Witness Rule

         Article 38.14 of the Texas Code of Criminal Procedure provides that "[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. This accomplice-witness rule "is not mandated by common law or the [United States Constitution]." Blake v. State, 971 S.W.2d 451, 454 (Tex. Crim. App. 1998). "The rule reflects a legislative determination that accomplice testimony implicating another person should be viewed with a measure of caution, because accomplices often have incentives to lie, such as to avoid punishment or shift blame to another person." Id.

         Because the accomplice-witness rule is statutorily imposed, it "is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards." Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (citations omitted). "When evaluating the sufficiency of corroboration evidence under the accomplice-witness rule, we eliminate the accomplice 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 crime." Id. (citations omitted). "To meet the requirements of the rule, the corroborating evidence need not prove the defendant's guilt beyond a reasonable doubt by itself." Id. "Rather, the evidence must simply link the accused in some way to the commission of the crime and show that 'rational jurors could conclude that this evidence sufficiently tended to connect [the accused] to the offense.'" Id. (quoting Hernandez v. State, 939 S.W.2d 173, 179 (Tex. Crim. App. 1997)) (alteration in original). The non-accomplice evidence may be direct or circumstantial. Smith, 332 S.W.3d at 442. "[W]hen there are conflicting views of the evidence-one that tends to connect the accused to the offense and one that does not-we will defer to the factfinder's resolution of the evidence." Id. "Therefore, it is ...


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