NUMBER 13-11-00778-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOE DAVID LUNA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of San Patricio County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides
Appellant, Joe David Luna, appeals his conviction for two counts of aggravated
assault, a second-degree felony, see TEX. PENAL CODE ANN. § 22.02(a) (West 2011), and
two counts of engaging in organized criminal activity, a first-degree felony. See id. §
71.01 (West 2011). By three issues, Luna asserts that (1) the non-accomplice witness
evidence insufficiently connects him to the alleged offenses; (2) insufficient evidence
exists for him to be convicted as a party to the alleged offenses; and (3) the trial court
committed charge error by (a) failing to provide the jury with an accomplice-witness
instruction and (b) providing erroneous application paragraphs. We affirm.
I. BACKGROUND
Luna and other individuals were indicted on two counts (Counts 1–2) of
aggravated assault and two counts (Counts 3–4) of engaging in organized criminal
activity related to a shooting in Taft, Texas. Luna pleaded “not guilty” as to Counts 1
and 2 and “no contest” as to Counts 3 and 4. The State tried Luna alongside his
co-defendant Leonard Garcia before a San Patricio County jury, and presented the
following evidence at trial.
On April 29, 2011, police were dispatched to a call of “shots fired” at a home on
the 500 block of Dolores Street in Taft, Texas. Taft Police Officer Jeremiah Smith
arrived first on the scene and made contact with two shooting victims, Robert Franco and
Steven Rivera. According to Officer Smith, Robert had “blood all over,” and people
around him “[tried] to keep pressure on his leg,” while Steven was “fading out a little bit,”
and his “lips turned blue.” As emergency workers treated Steven at the scene, he
identified several shooting suspects for Officer Smith, including: (1) Luna, (2) Garcia,
(3) Rodolfo Salazar, and (4) Jose Jimenez.
Robert and Steven each testified. Robert stated that he was at Steven’s house
on April 29, 2011 when he “got shot four times in the legs” by someone wielding a
handgun and then “fell to the ground.” As a result, Robert was hospitalized for four
days. Robert told the jury that he does not know who shot him nor does he know Luna
or Garcia, but that he does know Jimenez from time they spent together in prison.
2
Steven stated that he was in the front yard/porch area of his home when three
vehicles drove up to his house and Jimenez, Luna, Garcia, and Ruben Treviño exited.
Steven testified that Luna then opened fire at him after Jimenez and Luna each asked
him “who is Steve?” Steven said that when the first shot hit him, he felt like his “leg was
blown off.” Steven indicated that Luna fired either a .45 caliber or 9-millimeter silver
handgun that day. When pressed on cross-examination, Steven testified that he was
“one-hundred percent sure” that Luna shot him. Steven also admitted that at one point,
he was a “prospect” with the Raza Unida prison gang, but did not become a full-fledged
member and stopped affiliating with them because he “no longer wanted to carry out
their orders.” Steven stated that he was hospitalized following the shooting and
underwent “several” surgeries to recover.
Kimberly Rivera, Steven’s sister, also testified. Kimberly stated that she drove
up to the Dolores Street home on the evening of April 29, 2011 and witnessed “a bunch
of guys,” including Luna, “leaving in trucks, SUVs, and cars.” Kimberly testified that the
men were running as if they wanted to leave and “get out of there.” Kimberly stated that
she did not stop at the house as planned, and, instead, left out of fear. The State also
called witness Ray Lopez III. Lopez testified that he lived directly across the street from
Steven’s house. Lopez stated that he saw “five or six guys” drive up to Steven’s house
on April 29, 2011, before he heard gunfire. While Lopez could not identify any of the
shooters, he remembered seeing a nickel-plated gun and described one individual
involved as “young” with a light complexion.
Luna’s co-conspirator Jimenez also testified. Jimenez, who was incarcerated at
the time of trial, admitted that he was a member of Raza Unida along with Luna and
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Garcia. According to Jimenez, Luna proposed the idea of attacking Steven because
Steven sold drugs in Taft and refused to pay “taxes . . . to the gang . . . .”1 Jimenez
stated that all the firearms used in the attack belonged to Luna, and that it was Luna’s
idea to “take care of business” and “basically . . . kill them.”
Jimenez testified that the group descended on the Dolores Street residence in the
early evening hours of April 29, 2011 in three separate vehicles. Jimenez used a
9-millimeter firearm, while Luna used a .357 caliber weapon. Jimenez stated that he
shot Franco one time, “probably in the thigh,” and then returned to his car and drove
away. Prior to leaving the scene, Jimenez recalled seeing Luna fire his weapon.
Jimenez indicated that he abandoned his getaway vehicle later that night along a rural
road and was picked up by another vehicle and transported to Corpus Christi, Texas to
regroup with the others. The gang later rented rooms at a local Corpus Christi motel in
order to hide out. Jimenez testified that once at the motel, Luna bragged about
shooting Robert and Garcia stated that he shot Steven. Later that night, the group
visited a local carnival and returned to the motel. Luna, Garcia, and Treviño were
arrested the next day in Corpus Christi, while Jimenez was later captured in McAllen,
Texas.
Co-conspirator Salvador Gonzalez also testified and corroborated much of
Jimenez’s testimony, including the plan to “tax” Steven and Robert for selling drugs in
Taft. Gonzalez also stated that Garcia carried a “nickel-plated revolver” during the
attack and that he believed that Luna shot Steven that evening. Gonzalez remembered
1
Jimenez defined “taxes” as a certain percentage of drug proceeds that were owed to Raza Unida
for selling drugs in Taft.
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that Garcia and Luna joked later that evening in Corpus Christi about who shot Steven
first.
The State also called witness Lindsay Ann Gonzales. Gonzales testified that
she was acquainted with Luna prior to April 29, 2011 and that Luna—along with Garcia
and another unidentified male—arrived in Corpus Christi at 8 p.m. on April 29, 2011
driving a gold-colored sports utility vehicle. Gonzales admitted that she rented a
Corpus Christi-area motel room later that night for Luna, at Luna’s request, and with
Luna’s money.
Finally, the State called Investigator Isaac Leal of the San Patricio Sheriff’s
Department. Investigator Leal stated that one of his duties with the sheriff’s department
is to maintain the county’s “gang registry,” which identifies and classifies known and
suspected gang members around the county and the state. Investigator Leal testified
about the history of the Raza Unida prison gang and its leadership structure. At the
time of the shooting, Investigator Leal stated that Luna was the highest-ranking Raza
Unida gang member 2 in Taft and that Garcia, Jimenez, and Gonzalez were
subordinates. According to Investigator Leal, “nothing” could have been done without
Luna’s approval.
The jury found Luna guilty of each count as alleged in the indictment and
assessed punishment at: (1) thirty years’ imprisonment with a $5,000 fine for each
aggravated assault charge (Counts 1 and 2); and seventy-five years’ imprisonment with
2
According to Investigator Leal, the title of “pano” is given to a city’s highest ranking Raza Unida
member.
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a $10,000 fine for each engaging in organized criminal activity charge (Counts 3 and 4)
to run concurrently.3 This appeal followed.
II. ACCOMPLICE WITNESS TESTIMONY
By his first issue, Luna asserts that the non-accomplice witness evidence
insufficiently connects him to the alleged offenses.
A. Applicable Law and Standard of Review
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 (West 2005). Stated another way,
the test for weighing the sufficiency of corroborative evidence is to eliminate from
consideration the testimony of the accomplice witness and then examine the testimony
of other witnesses to ascertain if there is evidence which tends to connect the accused
with the commission of the offense. Hernandez v. State, 939 S.W.2d 173, 176 (Tex.
Crim. App. 1997). The corroborative evidence need not be sufficient in itself to
establish guilt, nor must it directly link the accused to the commission of the offense.
Brown v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008) (citing Hernandez, 939
S.W.2d at 176). We view the evidence in the light most favorable to the jury’s verdict.
Brown, 270 S.W.3d at 567.
An accomplice is someone who participates with the defendant before, during, or
after the commission of a crime and acts with the required culpable mental state.
Brown, 270 S.W.3d at 567; Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App.
3
The jury made affirmative enhancement findings that Luna used or exhibited a deadly weapon
during the commission of these offenses.
6
2004) (citing TEX. PENAL CODE ANN. § 7.02(a) (West 2011)). Here, the State does not
dispute that Jimenez and Gonzalez are accomplices. Thus, for the conviction to rest
upon Jimenez and Gonzalez’s testimony, “there must simply be some non-accomplice
evidence which tends to connect appellant to the commission of the offense alleged in
the indictment.” Brown, 270 S.W.3d at 567 (internal quotations omitted); McDuff v.
State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (en banc).
B. Discussion
In this case, Steven identified Luna directly in his testimony at trial as one of the
shooters and a participant to the offenses charged. More specifically, Steven stated
that he was “one-hundred percent sure” that Luna was the individual who shot him while
he ran away from the gunfire. Steven also described a silver gun that was used during
the offense, which corroborates Gonzalez’s testimony. Furthermore, Taft police officer
Smith stated that Steven identified Luna while emergency workers treated him on the
day of the shooting. Steven’s sister, Kimberly, also testified that Luna was “running”
from the Dolores Street house on the day of the shooting and fled in a vehicle along with
the other accomplices. Finally, Lindsay Gonzales testified that Luna arrived in Corpus
Christi along with other accomplices on the night of the shooting and rented a motel
room for him because they “weren’t going back home.”
After eliminating accomplice witness testimony from our consideration and
conducting an examination of the independent non-accomplice evidence, we conclude
that such non-accomplice evidence tends to connect appellant to the offense sufficiently
to corroborate the testimony of the accomplice witnesses. See Brown, 270 S.W.3d at
569. Luna’s first issue is overruled.
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III. SUFFICENCY CHALLENGE
By his second issue, Luna contends that insufficient evidence supports his
conviction as a party to the aggravated assault offenses.
A. Standard of Review
When reviewing a defendant’s sufficiency challenge, we view the evidence in the
light most favorable to the verdict to determine whether “any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.”
Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (citing Brooks v.
State, 323 S.W.3d 893, 902 (plurality op.)); see Jackson v. Virginia, 443 U.S. 307, 319
(1979). The jury is the sole judge of the credibility of witnesses and the weight to be
given to their testimonies, and the reviewing court must not usurp this role by substituting
its own judgment for that of the jury. Montgomery, 369 S.W.3d at 192. Thus, our duty
is “simply to ensure that the evidence presented supports the jury's verdict and that the
State has presented a legally sufficient case of the offense charged.” Id. (internal
citations omitted). When faced with a record supporting contradicting inferences, we
must presume that the jury resolved such conflicts in favor of the verdict, even if not
explicitly stated in the record. Id. (citing Brooks, 323 S.W.3d at 899 n.13).
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
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tried. Id.
B. Discussion
Here, the State alleged by two counts that Luna committed aggravated assaults
against Robert and Steven. Under a hypothetically correct jury charge, Luna is guilty of
aggravated assault if he (1) intentionally, knowingly, or recklessly caused bodily injury to
Robert and/or Steven and (a) caused serious bodily injury to Robert and/or Steven; or (b)
used or exhibited a deadly weapon, to wit: a firearm during the commission of the
assault. See TEX. PENAL CODE ANN. §§ 22.01–.02. At trial, the State argued two
potential theories of liability: (1) that Luna acted as the principal to both aggravated
assaults; or (2) that he acted as a party to the offense. See TEX. PENAL CODE ANN. §
7.01(a) (West 2011) (“a person is criminally responsible as a party to 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”); see also id. § 7.01(b) (“Each party to an offense may
be charged with commission of the offense”).
Luna specifically challenges the sufficiency of the evidence to convict him as a
party to the aggravated assault offenses. However, Steven directly testified that Luna
opened fire on him and was “one-hundred percent sure” that Luna shot him. Further,
accomplice Gonzalez also testified that he believed that Luna shot Steven that day and
that Luna and Garcia were joking about who shot Steven first. While Robert could not
identify who shot him on April 29, 2011, Jimenez testified that Luna bragged later that
night at the Corpus Christi motel that he “shot [Robert] as many times as he could.”
Jimenez also testified that Luna wielded a gun that day and fired it after the gang arrived
at the Dolores Street residence.
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Jimenez also testified that it was Luna’s idea to attack Steven and Robert that day
because Steven sold drugs in Taft and refused to pay “taxes” to the Raza Unida prison
gang. Gonzalez also testified that the gang met before the shooting in order to plan the
attack against Steven and Robert. Jimenez stated that all of the guns used in the
assault belonged to Luna. According to Jimenez and Gonzalez, the gang later met up
at a predetermined location in Corpus Christi where Luna in particular discussed the
shooting and the ramifications of death for anyone who showed “weakness” and told the
authorities about what happened.
After viewing this evidence in the light most favorable to the verdict, we conclude
that any rational trier of fact could have found Luna guilty of both counts of aggravated
assaults, under either of the State’s theories of liability, beyond a reasonable doubt.
We overrule Luna’s second issue.
IV. JURY CHARGE
By Luna’s final issue, he contends that the trial court committed harmful jury
charge error.
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 objection. Id. If the error was preserved by
objection, we will reverse if we find “some harm” to the defendant’s rights. Id. If no
objection was made, we will reverse only if the record shows “egregious harm” to the
defendant. Id.
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B. Discussion
Luna first argues that the trial court erred by not providing the jury with an
accomplice witness instruction with regard to Jimenez and Gonzalez’s respective
testimonies.
If there exists no doubt or the evidence clearly shows that a witness is an
accomplice as a matter of law then the trial court is under a duty to so instruct the jury.
Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007); Blake v. State, 971
S.W.2d 451, 455 (Tex. Crim. App. 1998) (en banc); see also Smith v. State, 332 S.W.3d
425, 441 (Tex. Crim. App. 2011). Here, no doubt exists and the evidence clearly shows
that Jimenez and Gonzalez are accomplices as a matter of law because they were both
indicted along with Luna for the charged offense. Therefore, we conclude that the trial
court erred by failing to instruct the jury under article 38.14. See TEX. CODE CRIM. PROC.
ANN. art. 38.14. Because Luna failed to preserve error on this issue, he must show
egregious harm. See Ngo, 175 S.W.3d at 743.
Under the egregious harm standard, the omission of an accomplice witness
instruction is generally harmless unless the corroborating (non-accomplice) evidence is
“so unconvincing in fact as to render the State's overall case for conviction clearly and
significantly less persuasive.” Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App.
2002) (en banc) (quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App.
1991) (en banc)). The court in Saunders found error under this standard because the
corroborating non-accomplice evidence was weak and was contradicted by other
evidence. See Saunders, 817 S.W.2d at 693.
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Unlike in Saunders, however, the corroborating non-accomplice evidence in this
case is not weak, as outlined in Part II of this opinion, and contradicted only by two
witnesses—Ramiro Rubio and Luna’s brother, Jason Luna—who both testified that Luna
was moving appliances with them on the evening of April 29, 2011. We defer to the jury
as to the credibility of these witnesses and the weight to be given to their testimonies.
See Montgomery, 369 S.W.3d at 192. Accordingly, we conclude that the trial court’s
error was harmless.
Next, Luna argues that the trial court erred by including the names of the other
accomplices in the application paragraph of the jury charge. We agree. Under the law
of parties, the State is able to enlarge a defendant’s criminal responsibility to acts in
which he may not be the primary actor. Goff v. State, 931 S.W.2d 537, 544 (Tex. Crim.
App. 1996). However, if the defendant requests that the application paragraph of the
jury charge refer only to those specific party-liability acts that are supported by the
evidence, then he is entitled to such a narrowing. Vasquez v. State, 389 S.W.3d 361,
368 (Tex. Crim. App. 2012) (emphasis in original) (citing Campbell v. State, 910 S.W.2d
475, 477 (Tex. Crim. App. 1995)).
The following application paragraphs were submitted to the jury:
COUNT 1
Now, if you find from the evidence beyond a reasonable doubt that on or
about April 29, 2011, in San Patricio County, Texas, [Jimenez], [Gonzalez],
[Luna], [Garcia], [Treviño] and [Salazar], acting alone or together, did then
and there intentionally, knowingly, or recklessly cause bodily injury to
[Steven] by shooting [Steven] with a handgun, to wit a firearm, then you will
find [Luna] guilty of Aggravated Assault as alleged in the indictment.
If you do not so believe, or if you have a reasonable doubt thereof, you will
find the defendant not guilty.
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COUNT 2
Now, if you find from the evidence beyond a reasonable doubt that on or
about April 29, 2011, in San Patricio County, Texas, [Jimenez], [Gonzalez],
[Luna], [Garcia], [Treviño] and [Salazar], acting alone or together, did then
and there intentionally, knowingly, or recklessly cause bodily injury to
[Robert] by shooting [Robert] with a handgun, to wit a firearm, then you will
find [Luna] guilty of Aggravated Assault as alleged in the indictment.
If you do not so believe, or if you have a reasonable doubt thereof, you will
find the defendant not guilty.
At the trial court’s charge conference, Luna objected to the application paragraphs
on the grounds that it would confuse the jury to include all of the defendants’ names as
written. Luna requested that the charge only list his name in the application paragraph,
or in the alternative, the following:
[Luna], acting alone or together with, [Jimenez, Gonzalez, Garcia, Treviño,
and Salazar] . . . .
Under Vasquez, we conclude that the trial court erred by denying Luna’s request to
narrow the application paragraph, in order to prevent juror confusion on how to apply the
abstract paragraph instruction on the law of the parties to the specific application
paragraph of the charges alleged against Luna. Thus, because Luna properly
preserved error on this issue, the error is reversible if the defendant has suffered actual
harm to his rights. See Vasquez, 383 S.W.3d at 368 (citing Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1984) (holding that “if the error in the charge was the
subject of a timely objection in the trial court, then reversal is required if the error is
‘calculated to injure the rights of defendant,’ which means no more than that there must
be some harm to the accused from the error)).
We analyze for harm in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of probative evidence, the argument of
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counsel, and any other relevant information revealed by the record of the trial as a whole.
Vasquez, 389 S.W.3d at 368–69.
Luna’s charge objection asserted that the application paragraph, as written,
allowed the jury to convict him purely based upon the self-incriminating testimony of his
accomplices, who admitted to planning, participating, and aiding in the commission of
the aggravated assault. We disagree. Luna’s argument ignores the amount of other
evidence discussed in Parts II and III, which directly implicates Luna as one of the
shooters and fully corroborates the accomplice’s testimony offered by the State to
connect Luna to the charged offenses. Furthermore, during closing arguments, the
State’s prosecutor paraphrased, explained, and clarified the law of parties and its
application to the present case in the following manner:
And if you believe [Jimenez] shot [Robert] and you believe [the
defendants] aided, assisted, encouraged, solicited, promoted this activity in
any way, then they’re guilty, ladies and gentlemen, because that is the law
of parties.
You do not actually have to believe they fired the shot to find them
guilty. However, I contend that both of them did, based on the evidence.
Both of them did.
But you don’t have to believe that to find them guilty and that’s what
the law of parties talks about in the charge.
Luna’s counsel, however, focused on inconsistencies in the evidence during her closing
arguments and did not specifically address the law of parties except to say that Luna was
not at the scene on Dolores Street when the crime took place. Finally, the verdict forms
in this case name Luna as the only defendant to find guilty or not guilty for the charged
offenses. We also agree with the trial court’s comments during the charge conference
that these verdict forms alleviated any concerns of confusion to the jury.
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Accordingly, after reviewing the record, we conclude that Luna’s rights were not
harmed by the trial court’s erroneous denial of his request to narrow the application
paragraph of the jury charge. Luna’s final issue is overruled.
V. CONCLUSION
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
9th day of May, 2013.
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