NUMBER 13-12-00345-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOSE ANTONIO
TORRES FLAMENCO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 430th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Benavides
Appellant, Jose Antonio Torres Flamenco, appeals his conviction for murder, a
first-degree felony. See TEX. PENAL CODE ANN. § 19.02(b)(1) (West, Westlaw through
2013 3d C.S.). By three issues, Flamenco asserts that: (1) the trial court erred in
denying his requested jury definition for an accomplice as a matter of law; (2) the trial
court erred by allowing a detective to testify about the body language of the suspects in
this case; and (3) the evidence is insufficient to support his conviction. We affirm.
I. BACKGROUND
A Hidalgo County grand jury indicted Flamenco for the murder of Yvette
Cardenas. Flamenco pleaded not guilty and was tried before a Hidalgo County jury.
The record reveals the following:
On April 18, 2011, McAllen police responded to a call from the Royal Inn Motel on
the 600 block of South 10th Street in reference to an unresponsive female found in one
of the motel’s guest rooms. Officer Rodolfo Rios arrived at the scene and discovered a
woman, later identified as Cardenas, half-clothed and lying in a “fetal” position on the
floor of Room 217. According to Officer Rios, Cardenas’s body looked “stiff” and had no
pulse. A short time later, Officer Robert Del Angel arrived and investigated the crime
scene. Officer Del Angel collected evidence from Room 217, including a pack of Pall
Mall cigarettes. Officer Del Angel testified that Cardenas’s torso was “twisted” and
blood flowed out of her nose and mouth. Officer Del Angel also retrieved surveillance
footage from the motel’s front office, which depicted two males, later identified by police
as Flamenco and Marlon Velasquez, arriving at the Royal Inn Motel with Cardenas in the
early morning hours of April 18, 2011. The surveillance footage showed that Velasquez
wore a khaki shirt, shorts, and sandals, while Flamenco wore glasses, a blue shirt, blue
jeans, and black slip-on shoes with a white lining.
Police eventually tracked down Flamenco at his residence across the street from
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the Royal Inn Motel. Officers spoke to Flamenco and his wife, and both agreed to go to
the McAllen police station for further questioning. At the station, Detectives Carlos
Garcia and Francisco Lopez interviewed Flamenco, while other officers spoke to his
wife. Detectives showed Flamenco the surveillance footage from the motel, but
Flamenco denied being the individual in the video and denied knowing Velasquez.
However, according to Detective Garcia, Flamenco’s wife identified both her husband
and Velasquez when police showed her the same surveillance footage. Flamenco also
told detectives that he did not go to the Royal Inn Motel on April 17, 2011, but Detective
Garcia testified that Flamenco ultimately changed his story and told police, “You know . .
. what? I’m going to tell you what happened.”
According to Detective Lopez, Flamenco admitted during the interrogation to
knowing Velasquez. Flamenco also told the detectives that he and Velasquez were
together on the night of the murder. Flamenco told Detective Lopez that on April 17,
2011, the night of the murder, he and Velasquez drank beer at Velasquez’s home,
purchased cocaine, and later traveled in Velasquez’s car to La Casita Motel, an
establishment apparently known for prostitution, in order to find a female for sex. At La
Casita, Flamenco and Velasquez encountered Cardenas, who entered Velasquez’s car
and directed them to take her to the Royal Inn Motel. Flamenco recounted that at the
Royal Inn Motel, he, Cardenas, and Velasquez lay on the bed drinking beer and using
cocaine. Flamenco told police that he then became worried that his wife could see him
from their home across the street from the Royal Inn, so he stood at the room’s only
window to keep a look out. Detective Lopez testified that while Flamenco stood at the
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window, facing away from the motel’s bed, Flamenco heard a slap, turned around, and
saw Velasquez hitting Cardenas. Flamenco observed Cardenas roll off the bed and
saw Velasquez stomp on her face. Flamenco told the detectives that they then picked
up the beer cans, put them in a plastic bag, and left the room. Detective Garcia testified
that Flamenco smoked Pall Mall-brand cigarettes, and Flamenco told the detectives that
Cardenas stole a pack of Pall Mall cigarettes from Velasquez’s car.
During their investigation, police recovered several items from Flamenco’s home
and Velasquez’s home, including a pair of black slip-on shoes that resembled the pair
worn by Flamenco and a pair of sandals that resembled the pair worn by Velasquez on
the night of the murder.
Velasquez testified at trial. According to Velasquez, he and Flamenco were
acquaintances and had met five months prior to Cardenas’s murder. Velasquez stated
that he and Flamenco were together on April 17, 2011. According to Velasquez, he
purchased cocaine at Flamenco’s request that night, and then they drank beer at his
home. After drinking beer, Velasquez and Flamenco traveled to La Casita Motel and
saw Cardenas walking outside of the motel. Velasquez testified that Flamenco asked
him to stop the car, and Flamenco spoke to Cardenas, who eventually entered the
vehicle. The trio then traveled to a “yellow hotel”1 on 10th Street and went upstairs into
a room.
Velasquez testified that once inside the room, Flamenco and Cardenas lay on the
bed, while he remained standing. Velasquez recalled that Flamenco and Cardenas
1 Velasquez could not recall the name of the Royal Inn Motel.
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used cocaine on the bed. An argument ensued because Cardenas demanded that
Flamenco pay her first before having sex, while Flamenco wanted to have sex first.
Velasquez recalled that Flamenco hit Cardenas in the face with a closed fist, and
Cardenas fell off the bed. According to Velasquez, Cardenas never screamed during
the altercation. After witnessing Flamenco punch Cardenas, Velasquez went inside the
motel room’s bathroom and washed his hands. Upon exiting the bathroom, Velasquez
witnessed Flamenco continue to hit Cardenas and choke her as she lay on the floor.
Velasquez said that he tried to leave the motel room, but Flamenco threatened to hurt
him if he left. Velasquez testified that before they left the room, Flamenco handed him
a bag of trash to carry out of the room. They both left the motel parking lot in
Velasquez’s car. Velasquez stated that Flamenco told him that he had left a cigarette
box in the motel room and wanted to retrieve it, but Velasquez declined to return to the
motel. Flamenco did not testify.
Detective Lopez testified that Velasquez’s story appeared to “flow[] better” than
Flamenco’s because Velasquez answered the detective’s questions “without hesitation,”
and also mentioned the fact that Flamenco choked Cardenas. During his interview with
police, Flamenco never mentioned Velasquez choking Cardenas. When asked about
whether Cardenas was strangled, Flamenco did not answer the question. When
Detective Lopez asked Flamenco whether he recalled Cardenas defending herself from
the attack, Flamenco remarked to the detectives how easy it was to control a female, if
you hit them hard enough. Detective Lopez also identified inconsistencies in
Flamenco’s story to police, including denying his identity in the surveillance video and
5
telling police that he wore a red shirt on the night of the murder, while the video showed
him wearing a blue long-sleeved shirt.
Norma Jean Farley, M.D. testified that she autopsied Cardenas’s body. Dr.
Farley found “quite a few injuries” around Cardenas’s neck and under her chin and also
discovered multiple contusions to Cardenas’s head including on the eyes, as well as
abrasions to the right upper and lower eyelid. Dr. Farley also noted a small abrasion on
the right side of Cardenas’s face and contusions to Cardenas’s left cheek, left ear, and
on the inferior chin and right jaw line. Dr. Farley stated that several injuries supported a
finding that Cardenas was strangled. Among the injuries noted were: (1) three blue
areas on the back posterolateral left neck; (2) “pinpoint hemorrhages” in Cardenas’s
conjunctivae, which is a sign of asphyxia; (3) hemorrhaging on the neck muscles; and (4)
a right-side fracture to Cardenas’s hyoid bone with hemorrhaging to the surrounding
muscle and tissue. According to Dr. Farley, the hyoid bone is a u-shaped bone located
near the base of the tongue, and the fracture along with the hemorrhaging around the
bone was “enough” evidence for her to make a diagnosis of strangulation as Cardenas’s
cause of death. Dr. Farley opined that Cardenas was still alive at the time she
sustained the injuries to her neck.
Edna Zavala, a forensic scientist with the Texas Department of Public Safety, also
testified. Zavala tested several pieces of evidence recovered by police and compared
the evidence with DNA samples from Flamenco, Velasquez, and Cardenas. Zavala
testified that Flamenco’s black slip-on shoe had a blood stain located on the side of the
shoe. According to Zavala, the blood stain contained a mixture of DNA from Cardenas,
6
Flamenco, and an unknown individual. Velasquez was excluded as a contributor to the
DNA on Flamenco’s shoe. No other relevant DNA results were discovered.
Flamenco’s mother testified on his behalf. During her testimony, she denied an
earlier accusation lodged by Velasquez that she had visited Velasquez in jail in an
attempt to persuade him to take the blame for the murder in exchange for Flamenco’s
mother sending Velasquez’s mother money.
The jury found Flamenco guilty as charged and assessed punishment at fifty-five
years’ imprisonment with the Texas Department of Criminal Justice’s Institutional
Division. This appeal followed.
II. ACCOMPLICE AS A MATTER OF LAW INSTRUCTION
By his first issue, Flamenco asserts that the trial court erred by denying his
requested instruction that Velasquez was an accomplice as a matter of law.
A. Standard of Review
Our first duty in analyzing a jury-charge issue is to determine whether error exists.
See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (en banc). If we find
error, we analyze it for harm. Id. The degree of harm necessary for reversal depends
on whether the error was preserved by requesting the proposed jury instruction. See
Oursbourn v. State, 259 S.W.3d 159, 168–69 (Tex. Crim. App. 2008) (“[T]he defense
must request a jury instruction before any error can result.”). If the error was preserved
by objection, we will reverse if we find “some harm” to the defendant's rights. “Some
harm” means any harm, regardless of degree. Arline v. State, 721 S.W.2d 348, 351
(Tex. Crim. App. 1986) (en banc); see Atkinson v. State, 934 S.W.2d 896, 897 (Tex.
7
App.—Fort Worth 1996, no pet.). Under a “some-harm” analysis, we are obligated to
determine whether the error was “calculated to injure the rights of the defendant.” See
Arline, 721 S.W.2d at 352. We consider the harmfulness in context of the entire record.
Id. If no objection was made, we will reverse only if the record shows “egregious harm”
to the defendant. Ngo, 175 S.W.3d at 743.
B. Applicable Law
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) (citation omitted). Presence at the crime scene does not make a
person an accomplice; an accomplice must have engaged in an affirmative act that
promotes the commission of the offense that the accused committed. Id. (internal
citations omitted). The evidence in each case will dictate whether an accomplice as a
matter of law or fact instruction is required. Id. When the evidence clearly shows (i.e.,
there is no doubt) that a witness is an accomplice as a matter of law, the trial judge must
instruct the jury accordingly. Id. (citing Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim.
App. 1987)); see Cocke v. State, 201 S.W.3d 744, 748 (“If a witness is an accomplice as
a matter of law, the trial court is required to provide an accomplice-witness instruction to
the jury.”). When there is doubt as to whether a witness is an accomplice (i.e., the
evidence is conflicting), then the trial judge may instruct the jury to determine a witness's
status as a fact issue. Smith, 332 S.W.3d at 439–40. Finally, when the evidence
clearly shows that a witness is not an accomplice, the trial judge is not obliged to instruct
the jury on the accomplice witness rule—as a matter of law or fact. Id. at 440. The
8
charge of the court must distinctly set forth the law applicable to the case, not express
any opinion as to the weight of the evidence, not summarize the testimony, or discuss
the facts or use any argument calculated to arouse the sympathy or excite the passions
of the jury. TEX. CODE CRIM. PROC. ANN. art. 36.14 (West, Westlaw through 2013 3d
C.S.).
C. Discussion
During the charge conference, the trial court found that Velasquez’s status as an
accomplice was “undisputed” in this case.2 As a result, the trial court instructed the jury
as follows:
9.
An accomplice witness is someone who has participated with another
before, during, or after the commission of the crime. 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; the
corroboration is not sufficient if it merely shows the commission of the
offense.
You are also instructed that in this case, Marlon Velasquez is an
accomplice witness, if an offense was committed as alleged in the
indictment. . . .
Flamenco sought to add additional language under Paragraph 9 of the trial court’s
charge to include a definition that an accomplice witness may be one as a matter of law
or as a matter of fact. Furthermore, Flamenco wanted the following language inserted
into Paragraph 9 of the charge, after the first sentence: “If a witness has been indicted
for the crime the defendant is accused of, he or she is an accomplice as a matter of law.”
This request was denied.
2 Velasquez was indicted along with Flamenco for Cardenas’s murder. However, Velasquez
testified that in exchange for his testimony, the murder charge would be dismissed.
9
After reviewing Flamenco’s requested additional definition, we conclude that it
was superfluous and unnecessary. The trial court’s charge clearly states the definition
of an accomplice, identifies Velasquez as an accomplice, and provides the requisite
accomplice-witness instruction as provided by article 38.14 of the code of criminal
procedure and the corresponding case law. See TEX. CODE CRIM. PROC. ANN. art. 38.14
(West, Westlaw through 2013 3d C.S.); Cocke, 201 S.W.3d at 747–48 (interpreting
article 38.14 and explaining the purpose of the accomplice-witness instruction).
Accordingly, we conclude that no charge error exists, and our analysis ends here. See
Ngo, 175 S.W.3d at 743. Flamenco’s first issue is overruled.
III. ADMISSIBILITY OF TESTIMONY
By his second issue, Flamenco contends that the trial court erred by overruling his
objection to Detective Garcia’s testimony about Flamenco’s body language in the
surveillance footage collected from the Royal Inn Motel.
A. Standard of Review and Applicable Law
We use an abuse of discretion standard in reviewing a trial court’s determination
of a witness’s qualifications as an expert and judgment regarding the admission of any
expert testimony. Ellison v. State, 201 S.W.3d 714, 722 (Tex. Crim. App. 2006).
Absent a clear abuse of that discretion, the trial court’s decision to admit or exclude
testimony will not be disturbed. Id.
Both lay and expert witnesses can offer opinion testimony. Osbourn v. State, 92
S.W.3d 531, 535 (Tex. Crim. App. 2002). Rule 701 deals with witnesses who
“witnessed” or participated in the events to which he or she is testifying, while Rule 702
10
allows for a witness who was brought in as an expert to testify. Id.; see TEX. R. EVID.
701, 702. Rule 701 requires the proponent of lay-opinion testimony to establish that the
witness has personal knowledge of the events upon which his opinion is based. Fairow
v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997). Personal knowledge may come
directly from the witness’s senses, or it may also come from experience. Id. If the
proponent of the opinion cannot establish personal knowledge, the lay testimony should
be excluded. Id.
It is impossible for a witness to possess personal knowledge of what someone
else is thinking because the individual is the only one who knows for certain the mental
state with which he or she is acting. Id. at 899 (citing Arnold v. State, 853 S.W.2d 543,
547 (Tex. Crim. App. 1993)). Therefore, if the trial court determines that a proffered
lay-witness opinion is an attempt to communicate the actual subjective mental state of
the actor, the court should exclude the opinion because it could never be based on
personal knowledge. Id. Likewise, if the witness's lack of personal knowledge yields
testimony that amounts to “choosing up sides” or an opinion of guilt or innocence, his
opinion should be excluded. Id.
However, not all Rule 701 opinions regarding culpable mental states need to be
automatically excluded for want of personal knowledge. Id. An opinion may satisfy
the personal knowledge requirement if such opinion is an interpretation of the witness’s
objective perception of events, of if it illuminates the distinction between personal
knowledge of another’s mental state and personal knowledge of perceived events. Id.
In this situation, the jury is free to give as much or as little weight to the opinion as it sees
11
fit. Id.
Once the perception requirement is met, the trial court must determine whether
the opinion is rationally based on that perception, i.e., that it is an opinion that a
reasonable person could draw under the circumstances. Id. at 899–900. If the opinion
is not capable of reasonably being formed from the events underlying the opinion, it must
be excluded. Id. at 900. Finally, the trial court must determine whether the opinion
would be helpful to the trier of fact to either understand the witness’s testimony or to
determine a fact in issue. Id.
When a witness who is capable of being qualified as an expert testifies regarding
events which he or she personally perceived, the evidence may be admissible as both
Rule 701 opinion testimony and Rule 702 expert testimony. Osbourn, 92 S.W.3d at
536. A person with specialized knowledge may testify about his or her own
observations under Rule 701 and may also testify about the theories, facts and data
used in his or her area of expertise under Rule 702. Id. Stated another way, a
witness may qualify to give testimony both under Rule 702—because of his or her
superior experiential capacity—and under Rule 701, if the witness's testimony and
opinion are based upon firsthand knowledge. Id. (internal quotations omitted); see TEX.
R. EVID. 701, 702.
B. Discussion
In the present case, the State elicited testimony from Detective Garcia regarding
Flamenco’s and Velasquez’s respective body language in the surveillance footage
retrieved from the motel. The following exchange relates to Flamenco’s complaint at
12
trial, after the trial court sustained Flamenco’s initial objection to the State’s line of
questioning:
[Prosecutor]: Detective Garcia, in your ten years as a detective, how
many times have you had to look at surveillance
footage in order to sort of help you understand a
crime?
[Det. Garcia]: Many times.
[Prosecutor]: Okay. More than 20?
[Det. Garcia]: Yes.
[Prosecutor]: More than 50?
[Det. Garcia]: Ah—over ten years, I would say, yes.
[Prosecutor]: As you watch those—have you ever seen a lookout on
a case, on a piece of surveillance, or someone going
into a store, or a restaurant, or anything like that?
[Det. Garcia]: Yes.
....
[Prosecutor]: Can you observe things about a person’s physical
demeanor, or their emotional state by watching these
videos?
[Det. Garcia]: Emotional? Maybe not. But just maybe the
demeanor—
[Prosecutor]: Okay.
[Det. Garcia]: —just by looking at the video.
[Prosecutor]: So there are observations that you can make by the
way someone’s moving?
[Det. Garcia]: Yes.
[Prosecutor]: Have you conducted interviews with witnesses and
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suspects in your ten years as an investigator with the
McAllen Police Department?
[Det. Garcia]: Yes, I have.
[Prosecutor]: Is reading someone’s body language during an
interview, or when they’re giving statements,
important?
[Det. Garcia]: Yes, it is.
[Prosecutor]: The more you get to interview people over your time,
have you gotten better at reading people’s body
language?
[Det. Garcia]: Yes, I have.
[Prosecutor]: Does [sic] your observations in interviewing, translate
to understanding how people move on a videotape?
[Det. Garcia]: Yes.
[Prosecutor]: Have you ever conducted surveillance on cases?
[Det. Garcia]: Yes, I have.
[Prosecutor]: When you’re watching people, covertly, to decide if
there’s criminal activity going on, do you learn things
from their body language?
[Det. Garcia]: Yes, you do.
[Prosecutor]: Back to the video in this case, did you notice things
about the body language, about these three
individuals?
[Defense]: Objection, Your Honor. I don’t think he’s laid the
proper predicate to establish him as an expert in body
language.
The Court: The objection is overruled.
Detective Garcia then described the demeanor of both Flamenco and Velasquez
14
as “calm” and approximated the distances between Cardenas, Flamenco, and
Velasquez as the three walked up to the motel room. Next, Detective Garcia observed
that Velasquez walked out of the room first in a “quicker” fashion than Flamenco, while
Flamenco was in a “[relaxed] mode.” Later, when asked by the State who he thought
was the “dominant personality” as between Flamenco and Garcia, Detective Garcia
opined that Flamenco was “the one who was in charge,” based upon his review of the
surveillance video and the fact that Flamenco sat with Cardenas in Velasquez’s
backseat, after picking her up at La Casita Hotel.
Flamenco argues that allowing Detective Garcia’s testimony interpreting
Flamenco’s body language amounted to an abuse of discretion. We disagree. First,
Detective Garcia’s testimony was opinion testimony admissible under Rule 701. See
Osbourn, 92 S.W.3d at 536. Detective Garcia’s testimony related to personal
observations that he made from watching the surveillance footage related to Flamenco’s
and Velasquez’s demeanor, the distance between Flamenco, Velasquez, and Cardenas,
and the pace at which each of them walked. This testimony relates to Detective
Garcia’s interpretation of his objective perception of events, which is admissible, see
Fairow, 943 S.W.2d at 899, rather than a “choosing of sides” or an attempt to
communicate about Flamenco’s actual subjective mental state or a decision of guilt or
innocence, which is inadmissible. See id. Furthermore, the jurors watched the
surveillance footage for themselves and were free to give as much or as little weight to
Detective Garcia’s testimony as they saw fit. See id.
Next, the trial court could have found that Detective Garcia’s perceptions were
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rationally based on his perception and a reasonable person could have drawn the same
conclusion from viewing the surveillance footage by estimating distance and speed and
evaluating demeanor. See id. 899–900. Finally, the trial court was within its discretion
to conclude that such testimony would help the jury in determining the ultimate issue of
guilt, because such testimony is relevant in outlining the appropriate facts of this case.
See id. at 900 (discussing how opinion testimony is helpful if it is a shorthand rendition of
the facts). Therefore, we conclude that the trial court did not abuse its discretion.
Moreover, even if we were to find that the trial court abused its discretion in
allowing Detective Garcia to testify about Flamenco’s body language, we nevertheless
conclude that such abuse of discretion was harmless. See TEX. R. APP. P. 44.2(b).
Non-constitutional error “that does not affect substantial rights must be disregarded.” Id.
Substantial rights are not affected by the erroneous admission of evidence if, after we
examine the record as a whole, we have fair assurance that the error did not influence the
jury, or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.
2002). In assessing the likelihood that the jury's decision was adversely affected by the
error, the appellate court should consider everything in the record, including any
testimony or physical evidence admitted for the jury's consideration, the nature of the
evidence supporting the verdict, the character of the alleged error and how it might be
considered in connection with other evidence in the case. Id. We may also consider
jury instructions, the State’s theory, and any defensive theories, closing arguments, and
voir dire, if applicable. Id. Finally, we may consider the State’s emphasis on the error
as a factor. See id.
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In this case, any harm caused by the purported error of admitting Detective
Garcia’s opinion testimony was minimal in light of the record and the nature of other
evidence supporting the verdict, as outlined in this opinion. Furthermore, as noted
above, the jurors viewed the same surveillance footage described by Detective Garcia
and were free to draw their own conclusions about the matters testified to by Detective
Garcia. We acknowledge that the State described Flamenco as the “dominant
personality” during closing arguments, but the State also encouraged the jurors to
evaluate Flamenco’s body language for themselves and determine whether they could
draw the same opinions put forth by Detective Garcia. Accordingly, we conclude that
the admission of Detective Garcia’s “body language” testimony, if in error, was harmless
and did not affect Flamenco’s substantial rights. See TEX. R. APP. P. 44.2(b).
Flamenco’s second issue is overruled.
IV. SUFFICIENCY CHALLENGE
By his final issue, Flamenco asserts that the evidence is insufficient to support his
conviction.
A. Standard of Review
In reviewing sufficiency of evidence to support a conviction, we consider all of the
evidence in the light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could have found
the essential elements of the crime beyond a reasonable doubt. Winfrey v. State, 393
S.W.3d 763, 768 (Tex. Crim. App. 2013); Gear v. State, 340 S.W.3d 743, 746 (Tex.
Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)); see Brooks
17
v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). In viewing the
evidence in the light most favorable to the verdict, 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 to their testimony. Brooks, 323 S.W.3d at 899. It is
unnecessary for every fact to point directly and independently to the guilt of the accused;
it is enough if the finding of guilty is warranted by the cumulative force of all incriminating
evidence. Winfrey, 393 S.W.3d at 768.
The elements of the offense are measured as defined by a hypothetically correct
jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a 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. Under a hypothetically correct jury charge, Flamenco is guilty of murder if he
intentionally or knowingly caused Cardenas’s death. See TEX. PENAL CODE ANN. §
19.02.
B. Discussion
The State elicited direct testimony from Velasquez, Flamenco’s accomplice, who
testified that he witnessed Flamenco repeatedly punch and choke Cardenas inside
Room 211 of the Royal Inn Motel in McAllen. According to Flamenco’s testimony,
Cardenas appeared unconscious during the entire ordeal, as well as when the pair left
the motel room. Under the appropriate standard of review, we defer to the jury’s
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credibility determinations of witness testimony. See Brooks, 323 S.W. 3d at 899. After
viewing all of the evidence in the light most favorable to the verdict, we also conclude
that the evidence is legally sufficient to support Flamenco’s conviction because after
reviewing the record, a rational fact finder could have found that Flamenco murdered
Cardenas beyond a reasonable doubt. See Winfrey, 393 S.W.3d at 768.
However, despite this eyewitness testimony, a conviction cannot be had upon the
testimony of an accomplice, such as Velasquez, unless corroborated by other evidence
tending to connect Flamenco with the offense committed; and the corroboration is not
sufficient if it merely shows the commission of the offense. TEX. CODE CRIM. PROC.
38.14. A challenge of insufficient corroboration is not the same as a challenge of
insufficient evidence to support the verdict, but is instead governed by a different test.
Yost v. State, 222 S.W.3d 865, 871 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d).3
When reviewing the sufficiency of non-accomplice evidence under Article 38.14, we
decide whether the inculpatory evidence tends to connect the accused to the
commission of the offense. Smith, 332 S.W.3d at 442. The sufficiency of
non-accomplice evidence is judged according to the particular facts and circumstances
of each case. Id. The direct or circumstantial non-accomplice evidence is sufficient
corroboration if it shows that rational jurors could have found that it sufficiently tended to
connect the accused to the offense. Id. So when there are conflicting views of the
evidence—one that tends to connect the accused to the offense and one that does
3 While Flamenco generally frames his final issue in terms of a legal sufficiency challenge to the
verdict, Flamenco also appears to challenge the sufficiency of the evidence to corroborate accomplice
testimony within that issue. Accordingly, we will examine both arguments separately under each
challenge’s respective tests.
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not—we will defer to the factfinder's resolution of the evidence. Id. Therefore, it is not
appropriate for appellate courts to independently construe the non-accomplice evidence.
Id.
The evidence shows that Flamenco and Velasquez were the last two individuals
with Cardenas prior to her death. We first note that testimony revealed that when the
police officers initially interrogated Flamenco about the murder, he denied that he was
one of the individuals in the surveillance footage, and he also denied knowing
Velasquez. Flamenco also told police that he wore a red-colored shirt that night,
despite the surveillance footage revealing that he wore a blue shirt. Additionally,
Flamenco told police a different story about his whereabouts on the night of April 17,
2011, but later in the interrogation, Flamenco changed his story and told the police “what
happened,” which included blaming Velasquez for the murder. Courts have held that a
defendant’s statements and conduct after the crime can be used to show a
consciousness of guilt. See King v. State, 29 S.W.3d 556, 564–65 (Tex. Crim. App.
2000); Couchman v. State, 3 S.W.3d 155, 163–64 (Tex. App.—Fort Worth 1999, pet.
ref’d); Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.). Here,
evidence of Flamenco’s post-crime conduct and his changing stories to police tended to
connect him to the offense.
Second, Flamenco told police that Velasquez stomped on Cardenas during the
murder, but that he never told police that Velasquez choked Cardenas. Velasquez
testified that he witnessed Flamenco choke Cardenas. Dr. Farley testified that based
on a right-side fracture to Cardenas’s hyoid bone, as well as surrounding trauma to the
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muscle and tissue, she opined that Cardenas died by strangulation. This evidence also
tended to connect Flamenco to the murder. See Smith, 332 S.W.3d at 442.
Finally, the evidence established that Flamenco told police that he never
approached Cardenas once she fell to the floor and that he stayed close to the motel
room’s window, which was located on the opposite wall from where Cardenas’s body
was found. Despite this assertion to police, a blood stain was found on Flamenco’s
shoes, and DNA testing revealed that the stain contained Flamenco’s as well as
Cardenas’s DNA. Detective Garcia testified that this particular crime scene was not
“bloody” and that Cardenas’s blood was found in an area no more than two feet from
where her body was found. When taken together, this evidence would allow
reasonable jurors to conclude that Flamenco lied to police and was within a close
proximity to Cardenas’s body.
After giving proper deference to the jury’s resolution of the facts as discussed
above, see id. at 447, we conclude that the evidence tends to connect Flamenco to
Cardenas’s murder. Flamenco’s final issue is overruled.
V. CONCLUSION
We affirm the trial court’s judgment.
_________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
29th day of August, 2014.
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