Court of Appeals of Texas, Fourth District, San Antonio
the 406th Judicial District Court, Webb County, Texas Trial
Court No. 2016-CRN-000241-D4 Honorable Oscar J. Hale, Jr.,
Sitting: Luz Elena D. Chapa, Justice Beth Watkins, Justice
Liza A. Rodriguez, Justice
A. RODRIGUEZ, JUSTICE
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.
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
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."
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."
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.
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."
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
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.
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.
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
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.
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. 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.
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."
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."
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
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.
of Accomplice-Witness Testimony
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.
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
Jackson v. Virginia Legal Sufficiency Standard
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.
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
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
Accomplice Witness Rule
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
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 ...