NUMBERS 13-12-00148-CR & 13-12-00155-CR & 13-12-00439-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOSE HOMERO SOSA CANTU Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 430th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Perkes
Memorandum Opinion by Justice Benavides
In these consolidated appeals, appellant Jose Homero Sosa Cantu appeals three
related convictions. In appellate cause number 13-12-00148-CR, Sosa appeals his
conviction for the murder of Gilberto Rosales Aguilar, arguing: (1) that the evidence
was legally insufficient to support the conviction and (2) that he received ineffective
assistance of counsel. See TEX. PENAL CODE ANN. § 19.02 (West, Westlaw through
2013 3d C.S.). In appellate cause number 13-12-00439-CR, Sosa challenges the
sufficiency of the evidence supporting his conviction for the murder of Roberto Javier
Resendez. See id. And finally, in appellate cause number 13-12-00155-CR,
concerning Sosa’s conviction for possession of marihuana, he contends that: (1) the
use of a drug-sniffing dog at his home constituted an unreasonable search under the
Fourth Amendment; (2) he did not receive a Miranda warning before confessing to
having marihuana in his home; and (3) he received ineffective assistance of counsel.
See TEX. HEALTH & SAFETY CODE ANN. § 481.121 (West, Westlaw through 2013 3d C.S.);
Miranda v. Arizona, 384 U.S. 436 (1966). We affirm all three convictions.
I. BACKGROUND
A. Cause Number 13-12-00148-CR: The Murder of Gilberto Rosales Aguilar
On February 6, 2010, City of Mission police officers found the body of Gilberto
Rosales Aguilar, also known as “El Gavilan,”1 in a field in northwest Hidalgo County.
Aguilar, whose t-shirt had been pulled up to expose his chest, had a gunshot wound to
the head. His body was wrapped in duct tape from his mouth to his neck and from his
waist to his ankles. The word “rata”2 had been written on his neck, and his ears had
been cut or clipped. A .45 caliber shell casing was found at the scene. Aguilar was
identified by his fingerprints, which were in the Hidalgo County Sheriff’s Office database
due to his past criminal history.
1. Testimony of Investigator Fernando Tanguma
1 The Spanish word “gavilan” translates into “sparrow.”
2 Later, Investigator Fernando Tanguma explained that this Spanish word translates literally into
the word “rat,” but can also mean “a thief,” “a snitch,” or “someone who cannot be trusted.”
2
At trial, Hidalgo County Sheriff’s Investigator Fernando Tanguma explained his
investigation of Aguilar’s death and how the investigation eventually led to the arrest of
Sosa. Investigator Tanguma testified that when he took over the investigation, he
learned that Aguilar had been dealing drugs. He spoke to Daniel Gutierrez, also known
as “Danny Boy,” who was apparently the last person to see Aguilar alive. Gutierrez told
Investigator Tanguma about Johnny Garcia, who was Aguilar’s friend. Garcia used to
date Erica Yvette Obregon Sosa, Sosa’s daughter. Gutierrez told Investigator
Tanguma that Garcia was involved in a recent shooting that occurred in McAllen, Texas.
Upon further inquiry, Investigator Tanguma learned that the McAllen shooting also
involved .45 shell casings. Forensic analysis revealed that the casings from the scene
of Aguilar’s death and the McAllen shooting came from the same gun. Investigator
Tanguma also learned that a white four-door pickup was used in the McAllen shooting.
When Investigator Tanguma went to Erica’s home to speak with her about her
ex-boyfriend Garcia, he met the appellant for the first time. Sosa introduced himself as
“El Licensiado.”3 Investigator Tanguma asked Erica and Sosa if they had ever owned a
white four-door pickup. Erica admitted that she used to own a truck like that and she
had let her ex-boyfriend, Garcia, drive it for three to four months while they were still
together. She, however, had since sold the vehicle. Investigator Tanguma thought
this sale was suspicious, though, because the bill of sale did not show who purchased
the vehicle.
Investigator Tanguma then testified that he received a call from Texas Ranger
Melba Molina. Ranger Molina learned that Hector Gonzalez, who was in the custody of
3 The Spanish word “licensiado” translates into the word “attorney” in English.
3
the U.S. Department of Homeland Security—Immigration and Customs Enforcement
Division, had information about a murder that occurred in Mission, Texas. Investigator
Tanguma went to speak with Gonzalez. Gonzalez told Investigator Tanguma that
Gutierrez and another man, Mark Anthony Garza, were involved in drug trafficking and in
Aguilar’s murder. Gonzalez also stated that Gutierrez had recently been arrested
driving a 1997 maroon GMC Yukon in Falfurrias, Texas and that the vehicle had been
impounded. Gonzalez told Investigator Tanguma that he had also been to Sosa’s
house once with Gutierrez and that while he was there, Sosa asked for the day’s
newspaper. After perusing the newspaper, Sosa allegedly stated that the police “did
not have anything or any suspects,” that “that’s what happens to thieves,” and that they
should have written “rata” on the deceased person’s forehead instead of his neck.
Gonzalez then told Investigator Tanguma that he had recently taken possession
of a handgun from Gutierrez. Gonzalez sold it to his girlfriend’s father, Juan Tapia.
Investigator Tanguma obtained consent from Tapia to take the gun, which was a .25
caliber semi-automatic handgun with white grips, and logged it into evidence.
Investigator Tanguma then spoke with Aida and Juan Villarreal, who found
Aguilar’s body the night of the murder and reported it to law enforcement authorities.
Aida said her daughter recalled seeing “GMC” on the front grill of an SUV leaving the
scene of the crime; Aida recalled that it was a dark-colored SUV.
Investigator Tanguma then spoke with Mark Anthony Garza, as Gonzalez had
mentioned his name during his interrogation. Garza admitted that he knew Gonzalez,
Gutierrez, Erica, and Sosa. Garza also mentioned that he knew a “Gordo One,” “Gordo
Two,” and Luis Marroquin who lived at the Sosa household.
4
Luis Adan Aleman Marroquin, also known as “Wicho,” was eventually brought into
custody. Marroquin explained that he was from Mexico and had gone to work for Sosa
when he came to the United States. Marroquin handled animals, cleaned cars, and did
chores for the Sosa family. Marroquin told Investigator Tanguma that he, “Gordo One,”
“Gordo Two,” and Roberto Javier Resendez all worked for the Sosa family and lived at
their residence. Marroquin stated that, one day, Gutierrez and Garza arrived at the
Sosa home and Gutierrez showed Sosa his new gun. Sosa informed Gutierrez that the
gun was actually his—Sosa’s gun had been missing—and asked Gutierrez where he got
the gun. Gutierrez told Sosa that he had gotten the gun from Aguilar. Sosa
remembered that Aguilar had been to his home several times on drug-related business
with Erica’s ex-boyfriend, Garcia. Sosa asked Gutierrez and Garza to bring Aguilar to
his home.
Marroquin stated that Gutierrez and Garza brought Aguilar to the home in a
maroon Yukon SUV. Aguilar’s head was bleeding when he arrived, and his hands were
tied behind his back. Aguilar was taken to the garage. Marroquin told Investigator
Tanguma that Sosa ordered Gordo One and Gordo Two to wrap Aguilar’s head with gray
duct tape so that he would not bleed in the garage. Sosa questioned Aguilar about
Gutierrez’s gun, some marihuana that had recently been stolen from him, and also a
recent attempt to kidnap Erica’s young son. Sosa also wanted to know if Garcia, Erica’s
ex-boyfriend, was involved in any of these occurrences. Throughout this questioning,
Gordo One and Gordo Two beat Aguilar. Although Aguilar initially denied everything,
he eventually admitted that he and Garcia stole the marihuana and that it was Garcia’s
idea to kidnap Erica’s son.
5
Marroquin told Investigator Tanguma that when Erica learned that Aguilar and
Garcia were behind the kidnapping attempt of her son, she retrieved a large pan from the
kitchen and hit Aguilar on the head with it. Sosa ordered Gordo One and Gordo Two to
wrap Aguilar up with duct tape. He was then taken to the GMC Yukon. According to
Marroquin, Sosa gave orders to shoot Aguilar twice in the head and Resendez
volunteered to do so. Marroquin saw Sosa give Resendez a black .45 caliber handgun.
Marroquin then witnessed Resendez write “por rata” on the left side of Aguilar’s head.
According to Investigator Tanguma, “rata” means “a thief,” “a snitch,” or “someone who
cannot be trusted.” Marroquin stated that when everyone returned, they all burned their
clothes and cleaned the GMC Yukon.
Based on this information, Investigator Tanguma obtained a felony arrest warrant
to bring Sosa into custody. He did not execute the warrant, but rather had Lieutenant
Esteban “Steve” Herrera do so.4 Law enforcement officials then arrested Sosa and
brought him to the Hidalgo County Sheriff’s Department.
2. Sosa’s Statement
Investigator Tanguma testified that, prior to taking Sosa’s statement, Sosa was
given written and verbal Miranda warnings in English and Spanish. The written Spanish
warnings are in the appellate record and show that Sosa initialed and signed his name
where appropriate.
The relevant portions of Sosa’s statement follow:
I would like to say that my daughter Erica used to date a man by the name
of Johnny Garcia for about 3 or 4 months. I believe Erica started dating
Johnny the last month of December 2009. Everything was okay with
4 See the discussion at section I(C), infra, for a full account of Sosa’s arrest.
6
Erica and [Garcia] until Erica’s birthday on January 15, 2010. Erica broke
up with [Garcia] and he was very upset.
[Garcia] had introduced me to two people by the names of Saul Casas and
Oscar Cantu several months before Erica started dating him. Saul and
Oscar ended up living in my house for about a year. I gave Saul the nick
name of Gordo-1 and Oscar the nick name of Gordo-2.
In the month of January 2010 my friend Angie introduced me to “Wicho”,
[Marroquin] and Roberto [Resendez]. [Marroquin] started working at my
house cleaning the yard.
I would like to say that sometime in the month of February 2010 I started
looking for my .25 caliber semi-auto handgun in my garage. I had
[Marroquin] and [Resendez] looking for my gun but we never found [it].
On the same month a person by the name of Mark Anthony Garza started
dating my daughter Erica Yvette Sosa. [Garza] was always with his friend
[Gutierrez]. One time [Garza] and [Gutierrez] came by my house and
[Gutierrez] showed me a .25 caliber chrome handgun with bone color
handgrips. I saw the gun and recognized it right away. I asked
[Gutierrez] where he got the gun from. [Gutierrez] told me he got it from a
friend of his. I checked out the gun very carefully and noticed it was the
gun that I had lost several weeks ago. I asked [Gutierrez] what was the
name of his friend he bought the gun from. [Gutierrez] told me that he got
the gun from his friend [Aguilar]. [Aguilar] was introduced to me by
[Garcia] when he was dating Erica. [Aguilar] came to my house several
times with [Garcia]. I told [Gutierrez] that the gun belonged to me.
[Gutierrez] told me to keep the gun and I told him to keep it.
I was told [b]y [Gutierrez] and [Garza] that they would get [Aguilar] and
bring him to my house. [Garza] and [Gutierrez] were in a 1997 or 1998
green SUV. Several hours later [Garza] and [Gutierrez] returned to my
house and parked their truck in the back yard of my house. I noticed that
[Garza] and [Gutierrez] had a male subject in the back seat of the SUV. I
saw the subject was [Aguilar] who had his hands tied with gray tape. I
saw [Garza] and [Gutierrez] take [Aguilar] out of the truck and walked him
to the garage. I saw that [Aguilar] was bleeding from his mouth when
[Garza] and [Gutierrez] brought him inside the house.
I also saw Gordo-[]1[,] Gordo-2, [Marroquin], and [Resendez] enter the
garage. I walked inside the garage and noticed Gordo-1, Gordo-2,
[Marroquin] and [Resendez] punching and hitting [Aguilar] on his head and
body. When I saw them hitting [Aguilar], I decided to walk out of the
garage. I heard [Garza] yelling at [Aguilar] and asking him who had stolen
the gun and who wanted to kidnap Erica’s son, Angelito. I heard [Aguilar]
7
say that he stole the .25 caliber handgun and the person who wanted to
kidnap Angelito was [Garcia].
I walked back inside the garage and noticed Gordo-1 and [Marroquin] were
using gray tape to tape [Aguilar’s] face, hands and feet. I saw [Gutierrez],
[Garza], and Gordo-1 picked up [Aguilar] from the floor and place him in the
back of green SUV. [Aguilar] was not moving or making any noise.
I decided to give [Garza] 2 handguns that I owned. The guns were .45
calibers semi-auto handguns, one was chrome and the second gun was
black. I told [Garza] that I did not want the guns in my house because of
my grandchildren.
[Marroquin], [Gutierrez], [Garza], Gordo-1, and [Resendez] left in the green
SUV. I was not told where they were getting rid of the [Aguilar] body. I
stayed at home and about 1 ½-2 hours later [Garza], [Gutierrez], Gordo-1,
[Resendez], and [Marroquin] returned home. I was told by [Garza] that
[Resendez] had shot [Aguilar] in the head.
3. Testimony of Hector Gonzalez
Gonzalez testified at trial and confirmed most of what Investigator Tanguma had
already described to the jury. He stated that he had known Garza since high school
and had met Garza’s friend, Gutierrez, in January of 2010. He knew that Garza and
Gutierrez were involved in drug trafficking. He confirmed that Garza dated Erica Sosa
at one point and that one time he went to her house and met Erica’s father “El
Licensiado,” or Sosa. Gonzalez confirmed that Sosa had several men working for him
and living at his residence, including Marroquin and Gordo One.
Gonzalez testified that one morning he was with Garza when Garza received a
call to pick up the day’s newspaper. They then took the newspaper to Sosa’s
residence. Gonzalez noticed an article in the day’s paper about a murder in the
“woods” or “brush.” He noticed that others in the house read the same story. He
testified that Sosa had asked if there was any evidence against him, and what the
officers had found, if anything. He also heard Sosa use the term “por rata” about the
8
person who had been killed, and that Sosa quipped, “that’s just what he deserves for
stealing.”
4. Testimony of Mark Garza
Garza testified that he had been charged with the capital murder of Aguilar, had
entered into an agreement to plead guilty to the charge of aggravated kidnapping
instead, and received a twenty-five year sentence in exchange for his testimony against
Sosa. He testified that he and his friend Gutierrez were in the business of transporting
drugs. He stated that he knew Erica Sosa and had met her father, Sosa, who was also
known as “El Licensiado.” He stated that he and Erica were just friends. He admitted
that Sosa told him at one point that Garcia, Erica’s ex-boyfriend, had once stolen
marihuana from him.
Garza testified that, besides Erica, her mother, and Sosa, he knew of four other
men who lived at the Sosa residence—“Gordo One,” “Gordo Two,” Marroquin, and
Resendez. He testified that one day his friend Gutierrez had purchased a gun from
Aguilar and paid $150 for it. On the day Gutierrez purchased the gun, they went to
Sosa’s house. Garza testified that when Gutierrez showed Sosa the gun, Sosa looked
surprised and told Gutierrez that it was actually his gun that had been stolen recently.
When Gutierrez stated that he had purchased it from Aguilar, Garza stated that Sosa
looked angry. Gutierrez and Garza then went to bring Aguilar to Sosa’s home. Garza
stated that he waited in the car while Gutierrez went to retrieve Aguilar from where he
was staying. He reported that Aguilar came to the car bleeding from his head because
he and Gutierrez fought; Aguilar had not wanted to accompany them.
9
Garza testified that when they arrived at the Sosa house with Aguilar, that Gordo
Two put handcuffs on Aguilar and took him to the garage. Garza stayed in the kitchen
with Gutierrez, but later went to the garage where he saw Resendez cut Aguilar’s ears
with a pair of scissors. He also saw Gordo5 kick Aguilar in the ribs and witnessed Erica
hit Aguilar over the head with a kitchen pan. Aguilar’s body was then loaded into the
Yukon. Garza then testified that he, Gutierrez, and Gordo One got into a white Xterra,
while Resendez, Marroquin, and Gordo Two got into the Yukon. He testified that they
drove “to 107 towards Western and Texas road.” He heard two to three gun shots.
Later, he learned that Resendez had shot Aguilar.
Garza testified that, the next day, he and Gonzalez took a newspaper to Sosa’s
house. He heard Sosa say, “that’s what happens to people that steal from me” and
make a comment about rats. Sosa also stated that Aguilar had stolen merchandise and
a gun from him.
5. Testimony of Luis “Wicho” Marroquin
Marroquin testified that, although he had been charged with capital murder of
Aguilar, he entered into a plea agreement to plead guilty to murder and received a
twenty-five year prison sentence in exchange for testifying truthfully at trial. Marroquin
testified that he lived with Sosa, Sosa’s wife, Erica and her children, Gordo One, Gordo
Two, and Resendez at Sosa’s home. He knew Garza and Gutierrez and Erica’s
ex-boyfriend Garcia.
Marroquin described what happened the day Gutierrez showed Sosa his new
gun. He stated that when Sosa realized that the gun was one that had been stolen from
5 The record is not clear whether Gordo One or Two committed this act.
10
him, he ordered Gutierrez and Garza to bring Aguilar to the house. Marroquin reported
that when Aguilar arrived, he was injured on the mouth because he had been beaten so
that they could kidnap him. Marroquin testified that Aguilar was questioned in the
garage about the stolen gun. During the questioning, Resendez hit Aguilar with a pipe,
Erica hit Aguilar on the head with a frying pan, and Gordo Two punched Aguilar in the
abdomen. Marroquin also witnessed Resendez cut Aguilar’s ears. Marroquin stated
that, after the beating, Aguilar seemed to be immobile. Marroquin testified that Sosa
ordered him to wrap up Aguilar with duct tape. Marroquin taped Aguilar’s body from his
abdomen up to his head, while Gordo Two taped Aguilar’s legs. Sosa then ordered
Marroquin to take Aguilar to the maroon Yukon and asked for volunteers to kill Aguilar.
Resendez offered to shoot him. Marroquin stated that Sosa gave Resendez a gun and
ordered him to shoot Aguilar twice in the head.
Marroquin testified that he did not go with the rest of the men to shoot Aguilar and
dump his body. He did testify, though, that Gordo Two cleaned the maroon Yukon the
next day and that all of the men burned their clothes from the day before because they
had blood on them.
B. Cause Number 13-12-00439-CR: The Murder of Roberto Javier Resendez
Marroquin testified that, after Aguilar was murdered, Sosa refused to let him,
Gordo One, Gordo Two, or Resendez leave the house because he feared one of them
would talk about the circumstances surrounding Aguilar’s death. Their living situation
“was more tense.” Marroquin stated that Resendez admitted to murdering Aguilar, and
that Sosa promised to pay Resendez $20,000 to kill Aguilar. However, when Sosa
failed to pay Resendez, Resendez became “upset . . . he wanted his money.”
11
Resendez apparently threatened to cut off the fingers of Sosa’s family members if Sosa
did not pay him.
Marroquin then stated that Sosa confessed to wanting to “get rid of,” or kill,
Resendez because he was afraid that Resendez would talk about Aguilar’s murder.
Marroquin confessed that Gordo One and Gordo Two then told him that they were going
to take Resendez back to where the animals were on Sosa’s property, kill him, and bury
him in a hole they dug inside the chicken coop for this purpose. Marroquin stated that
Garza and Gutierrez also participated in Resendez’s murder by purchasing “some
materials so the body wouldn’t smell, and also cement to put in the hole.” Marroquin
testified that Sosa gave Gordo One and Gordo Two each an ice pick to stab Resendez to
death. Later, Marroquin saw Resendez’s body covered with holes, lying dead in a
grave dug inside the chicken coop. He also learned that Resendez’s throat had been
slit with a saw, but he did not know who had done that. Gutierrez and Garza later came
to cover the body with lye and cement.
When Sosa was brought into custody and questioned by Investigator Tanguma,
he also mentioned the death of Resendez. Sosa provided the following relevant
information in his statement:
I would like to add that about three weeks after Aguilar’s death, [Resendez]
was upset at me because I had not paid him for a job he had done for me.
I told [Resendez] that I had not gotten paid for the marihuana but would
pay him the minute I had money.
Gordo-1 and Marroquin told [Resendez] to calm down but he was very
upset. I saw Gordo-1 walk to the back room that is located behind the
chicken coop. I saw that Gordo-1 had an ice pick in his right hand. I told
Gordo to calm down because they all worked together. I then walked
inside my house and [Resendez], Gordo and [Marroquin] stayed outside.
I did not go outside anymore. I noticed after that day I did not see
[Resendez] anymore. Several days later I was told by Gordo-1 that
12
Marroquin and him had stabbed [Resendez] with [an] ice pick then they
buried him in the chicken coop in the back yard. I told Gordo-1 and
[Marroquin] that was the wrong thing to do.
C. Cause Number 13-12-00155-CR: Confiscation of the Drugs
As stated before, Investigator Tanguma obtained a felony arrest warrant for Sosa
after he questioned Marroquin and realized that Sosa was involved in Aguilar’s murder.
Although Investigator Tanguma obtained the warrant, Lieutenant Steve Herrera
executed it. Lieutenant Herrera testified that he was briefed regarding the ongoing
investigations. He stated that he and fellow officers then got a cellular telephone
number for Sosa and got a “ping” on Sosa’s location.
Lieutenant Herrera, along with the sheriff’s tactical patrol unit, travelled to the
residence where the “ping” originated. He testified that he and his fellow officers set up
a perimeter around the residence, as per protocol, and that he then knocked on the door.
Sosa answered the door. Lieutenant Herrera spoke with Sosa and took him into
custody. Lieutenant Herrera then testified that the tactical team entered the residence
to secure the officers’ safety. Officers “make sure that there is not any potential danger
inside of the house before [they] walk away….” The officers evacuated two women and
two young children.
At some point, K-9 Officer Jaime Garcia, who was at the scene with his trained
narcotics dog Bosco, informed Lieutenant Herrera that Bosco had alerted him to the
presence of narcotics. Another officer, Senior Deputy John Ortega, told Lieutenant
Herrera that he noticed narcotics in the home while he secured the premises. Deputy
Ortega saw large bundles of marihuana in one room during the protective sweep and
also detected the smell of marihuana.
13
Deputy Cavazos testified that Sosa gave him verbal consent to search for
narcotics in the home, but that Lieutenant Herrera decided to inform the narcotics unit
about the drugs instead. Lieutenant Herrera explained that he made this decision
because his officers “were there to serve a felony arrest warrant” and not to “seize
mari[h]uana.” Lieutenant Herrera advised the sheriff’s department narcotics unit about
the potential find and they came later with a warrant to seize the narcotics.
Deputy Cavazos also testified that he did not give Sosa a Miranda warning prior to
asking Sosa if he was aware of the presence of marihuana in the house. Sosa
responded in the affirmative and also informed Cavazos that there were more drugs in
the bathroom. Deputy Cavazos stated that the narcotics investigators found a total of
460 pounds of marihuana in a bedroom and bathroom. They also found a hydraulic
press to compress marihuana; clear tape, Reynolds wrap, and cellophane, which are
used to package marihuana; weapons, including a hunting rifle, a .270 rifle, “an A.K. with
a long magazine,” a shotgun, and several handguns; and a bullet proof vest.
II. CAUSE NUMBER 13-12-00148-CR
In Cause Number 13-12-00148, Sosa was convicted of the murder of Gilberto
Rosales Aguilar”.6 By two issues, which we renumber as three, he argues: (1) that
co-conspirator testimony should not have been used to convict him; (2) that the evidence
was insufficient to establish the requisite mens rea to support a murder conviction; and
6 In the original indictment, Sosa was charged with capital murder because of the kidnapping of
Aguilar prior to Aguilar’s execution. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West, Westlaw through
2013 3d C.S.) (stating that a person commits capital murder if the person commits murder in the course of
committing or attempting to commit kidnapping). However, in this case, the jury ultimately convicted Sosa
of the lesser-included charge of murder. See id. § 19.02(b)(1) (West, Westlaw through 2013 3d C.S.).
The trial court sentenced Sosa to forty-five years in the Texas Department of Criminal Justice–Institutional
Division.
14
(3) that he received ineffective assistance of counsel.
A. Co-conspirator Testimony
In his first issue, Sosa challenges the State’s use of the co-conspirator testimony
of Garza and Marroquin to convict him.
1. Applicable Law
A person cannot be convicted based upon the testimony of an accomplice witness
unless the testimony is corroborated by other evidence tending to connect the defendant
with the offense committed; and the corroboration is not sufficient if it merely shows the
commission of the offense. TEX CODE CRIM. PROC. ANN. art. 38.14 (West, Westlaw
2013 through 3d C.S.). Corroborating evidence can be direct or circumstantial and
does not have to establish the guilt of the accused. Smith v. State, 332 S.W.3d 425,
442 (Tex. Crim. App. 2011) (“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.”); Gill v. State, 873 S.W.2d 45, 48 (Tex.
Crim. App. 1984) (en banc). The corroborating evidence must merely tend to connect
the accused to the commission of the offense. Smith, 332 S.W.3d at 442. In
reviewing a complaint of insufficient corroborating evidence, we are required “to consider
the combined force of all of the non-accomplice evidence that tends to connect the
accused to the offense.” Id.
2. Discussion
Here, even if we completely disregard the testimony of Garza and Marroquin, both
of whom were charged as co-conspirators, there is evidence tending to connect Sosa
with Aguilar’s murder. Gonzalez, who was not a co-conspirator, testified that he went to
15
Sosa’s house the day after Aguilar was killed. Gonzalez noticed Sosa read an article
in the day’s newspaper regarding a murder in the “woods” or “brush.” He stated that
Sosa had asked the others in the room if there was any evidence against him and what
the officers had found, if anything. He also heard Sosa use the term “por rata” about
the person who had been killed and explain, “that’s just what he deserves for stealing.”
Investigator Tanguma testified that Aguilar had the word “rata” written on his neck.
Further, Sosa’s own statement to the police corroborates many of the findings that
Investigator Tanguma confirmed through other witnesses. Although Sosa minimizes
his involvement in Aguilar’s death, he confirmed that Gutierrez showed him a gun that he
believed Aguilar had stolen from his home weeks before. He also confirmed that
Gutierrez and Garza brought Aguilar to his home, and that Aguilar was questioned and
beaten in his garage by Gordo One, Gordo Two, Marroquin, and Resendez. He even
admitted giving Garza a gun: “the guns were .45 calibers semi-auto handguns, one
was chrome and the second gun was black.” This combined corroborating evidence
tends to connect Sosa to the commission of the offense. Smith, 332 S.W.3d at 442.
Accordingly, we overrule this issue.
B. Sufficiency of the Evidence7
In his second issue, Sosa argued that there was not enough evidence to establish
that he had the requisite mens rea to commit murder.
1. Applicable Law
7 Sosa contested both the legal and the factual sufficiency of the evidence to support his murder
conviction. In 2010, however, the Texas Court of Criminal Appeals held that there is no “meaningful
distinction between the Jackson v. Virginia legal sufficiency standard and the Clewis factual-sufficiency
standard” and the Jackson standard “is the only standard that a reviewing court should apply in determining
whether the evidence is sufficient to support each element of a criminal offense that the State is required to
prove beyond a reasonable doubt”. Brooks v. State, 323 S.W.3d 893, 902–03 (Tex. Crim. App. 2010)
(plurality op.). Accordingly, we consolidate Sosa’s two points of error on sufficiency into one analysis.
16
“The standard for determining whether the evidence is legally sufficient to support
a conviction is ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex.
Crim. App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Brooks v.
State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The fact-finder is
the exclusive judge of the credibility of witnesses and of the weight to be given to their
testimony. Anderson v. State, 322 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.]
2010, pet. ref'd) (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)).
Reconciliation of conflicts in the evidence is within the fact-finder's exclusive province.
Id. (citing Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve
any inconsistencies in the testimony in favor of the verdict. Id. (citing Curry v. State, 30
S.W.3d 394, 406 (Tex. Crim. App. 2000)).
We measure the sufficiency of the evidence by the elements of the offense 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. A person commits murder if he “intentionally or
knowingly causes the death of an individual.” TEX. PEN. CODE ANN. § 19.02(b)(1).
Here, Sosa was charged under the law of the parties, which provides as follows:
All persons are parties to an offense who are guilty of acting together in the
commission of an offense. A person is criminally responsible as a party to
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an offense if the offense is committed by his own conduct, by the conduct
of another for which he is criminally responsible, or by both. Each party to
an offense may be charged with the commission of the offense. 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.
See id. §§ 7.01(a)–(b), 7.02(a)(2) (West, Westlaw through 2013 3d C.S.). “Intent
may . . . be inferred from circumstantial evidence such as acts, words, and the conduct
of the appellant.” Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).
2. Discussion
Sosa contends that the State did not prove the culpable mental state of
“knowingly” or “intentionally” to support his murder conviction. “A person acts
knowingly, or with knowledge, with respect to the nature of his conduct or to
circumstances surrounding his conduct when he is aware of the nature of his conduct or
that the circumstances exist.” TEX. PENAL CODE ANN. § 6.03(b) (West, Westlaw 2013
through 3d C.S.). A person acts “intentionally” “when it is his conscious objective or
desire to engage in the conduct or cause the result.” Id. § 6.03(a) (West, Westlaw 2013
through 3d C.S.).
“Section 7.02(b) allows criminal responsibility for the conduct of another,
eliminating the necessity for proof of intent to commit the felony actually committed, but it
does not excuse the State from proving a culpable mental state.” Gonzalez v. State,
296 S.W.3d 620, 630 (Tex. App.—El Paso 2009, no pet.) (citing Gravis v. State, 982
S.W.2d 933, 938 (Tex. App.—Austin 1998, pet. ref'd)). “The State is required to show
that the accused had both the mens rea to engage in the conspiracy and the culpable
mental state to commit the underlying, i.e., the intended, felony.” Id. “The mental state
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for the underlying felony supplies the mens rea for the felony actually committed by the
co-conspirator.” Id.
Under the law of the parties, Sosa “solicit[ed],” “encourage[d],” and “direct[ed]” the
murder of Aguilar. Marroquin testified that, after Aguilar was beaten for stealing
Sosa’s gun, Sosa ordered Marroquin to wrap Aguilar with duct tape and carry him to the
maroon Yukon. Marroquin also stated that Sosa then asked for volunteers to kill
Aguilar, and that Resendez voluntarily offered to do so.
Garza testified that Sosa became angry when he realized that Aguilar had stolen
a gun from him and subsequently gave it to Gutierrez. Garza also testified that, the day
after Aguilar’s murder, he and Gonzalez took a newspaper to Sosa’s house. He heard
Sosa say, “that’s what happens to people that steal from me” and make a comment
about rats. Garza also testified that Sosa said Aguilar had stolen merchandise and a
gun from him, which would constitute a possible motive for Sosa to order Aguilar’s death.
Viewing the evidence in the light most favorable to the prosecution, we hold that a
rational trier of fact could have found beyond a reasonable doubt that Resendez
intentionally or knowingly killed Aguilar and that Sosa solicited, encouraged, or directed
the murder. Accordingly, Sosa had a “knowing” and “intentional” mental state to be
convicted of murder under Texas’s law of the parties. See TEX. PEN. CODE ANN. §§
7.01(a)–(b), 7.02(a)(2). We overrule this issue.
C. Ineffective Assistance of Counsel
Sosa also argues that he received ineffective assistance of counsel in his trial for
the murder of Aguilar. Specifically, he contends that his attorney’s performance was
deficient because he failed to file a motion to suppress and failed to apprise him of the
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risks of a judge determining his sentence rather than a jury.
1. Applicable Law
“To obtain a reversal of a conviction under the Strickland test, a defendant must
show that: (1) counsel's performance fell below an objective standard of reasonableness
and (2) counsel's deficient performance prejudiced the defense, resulting in an unreliable
or fundamentally unfair outcome of the proceeding.” Davis v. State, 278 S.W.3d 346,
352 (Tex. Crim. App. 2009) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
“Deficient performance means that ‘counsel made errors so serious that counsel was not
functioning as the counsel guaranteed the defendant by the Sixth Amendment.’” Ex
parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S.
at 687). “The prejudice prong of Strickland requires showing ‘a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have
been different.’” Id. at 248 (quoting Strickland, 466 U.S. at 694). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
(quoting Strickland, 466 U.S. at 694). “[E]ach case must be judged on its own unique
facts.” Davis, 278 S.W.3d at 353.
The burden is on the appellant to prove ineffective assistance of counsel by a
preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999). Appellant must overcome the strong presumption that counsel's conduct
fell within the wide range of reasonable professional assistance and that his actions
could be considered sound trial strategy. See Strickland, 466 U.S. at 689; Jaynes v.
State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). A reviewing
court will not second-guess legitimate tactical decisions made by trial counsel. State v.
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Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (“[U]nless there is a record
sufficient to demonstrate that counsel's conduct was not the product of a strategic or
tactical decision, a reviewing court should presume that trial counsel's performance was
constitutionally adequate . . . .”). Counsel's effectiveness is judged by the totality of the
representation, not by isolated acts or omissions. Thompson, 9 S.W.3d at 813; Jaynes,
216 S.W.3d at 851. An allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.
Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814
n.6.
2. Discussion
Sosa claims that his attorney performed deficiently when he failed to file a pre-trial
motion to suppress. However, a review of the clerk’s record in this case reveals that
Sosa’s attorney filed a motion to suppress on July 21, 2011, almost two months prior to
the date of trial. The motion sought to suppress “any tangible evidence seized in
connection with this case without lawful warrant, probable cause, or other lawful
authority,” as well any statements or testimony elicited during the investigation “in
violation of Defendant’s [r]ights” under the U.S. or Texas Constitutions be suppressed.
Because Sosa’s argument is belied by the record, we overrule this sub-issue.
Sosa further contends that his trial counsel performed deficiently when counsel
failed to apprise him of the risk of having a judge assess his punishment instead of jury.
He argues, “A jury is more inclined to be more receptive to factors which militate against
assessing a more severe sentence.” In contrast, he asserts that “the trial judge, an
elected official, is more inclined to make an example of the defendant.” The record,
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though, is silent regarding why Sosa’s counsel elected for the judge to determine
punishment. Moreover, counsel’s actions were not “so outrageous that no competent
attorney would have engaged in it.” Goodspeed, 187 S.W.3d at 392. Accordingly, we
hold that Sosa has failed to overcome the strong presumption that his counsel's decision
fell within the wide range of reasonable professional assistance and that his actions
could be considered sound trial strategy. See Strickland, 466 U.S. at 689; Jaynes, 216
S.W.3d at 851. We overrule this second sub-issue.
III. CAUSE NUMBER 13-12-00439-CR
In this cause, Sosa was convicted of the murder of Resendez, the man who
allegedly killed Aguilar. See TEX. PENAL CODE ANN. § 19.02. Sosa received a
forty-year sentence for this conviction.
Here, Sosa asserts that there was insufficient evidence to prove that he was guilty
of the murder of Resendez. Based on the record, we disagree. Marroquin testified
that Resendez admitted to murdering Aguilar and was upset when Sosa failed to pay him
the $20,000 promised for the murder.8 Marroquin also testified that Sosa confessed to
wanting to “get rid of” Resendez because Sosa feared that Resendez would talk about
Aguilar’s murder. Sosa’s statement to the police, while again underplaying his
involvement, essentially confirmed the facts of how Resendez was murdered and buried
in Sosa’s chicken coop.
Sosa points out, and we acknowledge, that Marroquin entered into a plea
agreement to plead guilty to murder instead of capital murder in exchange for testifying
at trial. He suggests that Marroquin, therefore, had an incentive to assist the State’s
8 We note that Sosa did not raise the issue of using accomplice testimony corroboration in this
cause.
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case against Sosa. However, the jury is the exclusive judge of the credibility of
witnesses and of the weight to be given to their testimony. Anderson, 322 S.W.3d at
405; Lancon, 253 S.W.3d at 707. Although the jury was advised of Marroquin’s plea
agreement, it appears that the jury still believed Marroquin when he testified that Sosa
ordered Resendez’s death. We will not substitute our judgment for that of the
factfinder. Anderson, 322 S.W.3d at 405. We overrule this issue.
IV. CAUSE NUMBER 13-12-00155-CR
In this cause, Sosa was convicted of the offense of possession of marihuana in an
amount of 2,000 pounds or less, but more than 50 pounds. See TEX. HEALTH & SAFETY
CODE ANN. § 481.121. He received a ten year prison sentence for this conviction. He
appeals this conviction by three issues: (1) the use of a drug-sniffing dog was a
violation of his Fourth Amendment rights; (2) he did not receive a proper Miranda
warning; and (3) he received ineffective assistance of counsel.
A. Use of a Drug-Sniffing Dog
By his first issue, Sosa argues that the use of a drug-sniffing dog while officers
executed the felony arrest warrant was a violation of his Fourth Amendment rights.
Sosa cites the recent U.S. Supreme Court case, Florida v. Jardines, in support of his
argument. 133 S. Ct. 1409 (2013) (holding that the use of a trained narcotics-detecting
canine at a residential curtilage requires a search warrant, absent consent). However,
as the State correctly points out, Sosa failed to preserve this alleged issue. Although
the record shows that Sosa filed a motion to suppress the fruits of the search at his
residence and not allow “any tangible evidence seized in connection with this case,” the
motion to suppress was later withdrawn. Further, Sosa failed to object to the admission
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of the evidence at the time of trial. See TEX. R. APP. P. 33.1. Therefore, this issue is
unpreserved for our review.9
B. Failure to Issue a Proper Miranda Warning
By his second issue, Sosa argues that he did not receive Miranda warnings prior
to telling Deputy Cavazos that he was aware of drugs being in his home and that there
were more in the bathroom. However, again, Sosa failed to preserve this issue by not
objecting to the admission of this statement at trial. See TEX. R. APP. P. 33.1. Also, we
note that even though Sosa’s counsel filed a “Jackson v. Denno Motion for Hearing on
the Voluntariness of Any Admission or Confession Whether Written,” there is no
indication in the record that his attorney ever set this motion for hearing or received an
order for it. Furthermore, the error, if any, in the admission of Sosa’s statement was
minimized when the trial court gave the following instructions to the jury:
In this case, if you find from the evidence, or if you have reasonable doubt
thereof, that prior to the time the defendant gave the alleged statement or
confession to Officer Robert Cavazos, if he did give it, the said Officer
Robert Cavazos did not warn defendant in the respects enumerated above
[which set forth the Miranda requirements], or as to any one of such
requirements, then you will wholly disregard the alleged confession or
statement and not consider it for any purpose.
For all of these reasons, we overrule this issue.
C. Ineffective Assistance of Counsel
In his final issue, Sosa argues that his trial counsel failed to pursue appropriate
motions to suppress evidence that the State used to convict Sosa. Sosa admits that “in
trial, counsel did object to portions of the incriminating evidence against appellant”;
9 This Fourth Amendment argument is also problematic because there is testimonial evidence
that Sosa consented to the search of his home. See Hubert v. State, 312 S.W.3d 554, 560 (Tex. Crim.
App. 2010). However, we need not delve into this analysis as the issue was not preserved for our review.
24
however, he argues that those objections “did not address the relevant issue at hand:
the illegality of the evidence used against the appellant.” Specifically, Sosa contends
that the statements Sosa made, along with the evidence allegedly found through the use
of the drug-sniffing dog, should have been excluded. First, because Sosa’s counsel did
object to this evidence, this argument is waived. Second, the record is silent as to why
Sosa’s counsel filed the motion to suppress but later withdrew it. In light of this, Sosa
has failed to overcome the strong presumption that his counsel's decision fell within the
wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689;
Jaynes, 216 S.W.3d at 851.
Sosa also argues that the attorney should not have allowed the trial judge to
assess punishment against him and instead should have allowed the jury to do so.
Again, though, the record is silent on this matter. Sosa has not met his burden on this
argument, either, of showing how it constituted deficient performance or how it
prejudiced the ultimate outcome of his case. Davis, 278 S.W.3d at 352. We overrule
this issue.
V. CONCLUSION
Having overruled all of Sosa’s issues, we affirm the trial court’s judgments.
__________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
20th day of March, 2014.
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