Carlos Zuniga v. State

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-11-00704-CR

Carlos ZUNIGA,
Appellant

v.

The STATE of Texas,
Appellee

From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 09-04-12605-CR
Honorable Richard C. Terrell, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice

Delivered and Filed: December 28, 2012

AFFIRMED

A jury convicted appellant, Carlos Zuniga, of murder, and assessed punishment at thirty

years’ confinement. On appeal, appellant asserts the indictment provided inadequate notice, he

was entitled to an accomplice witness instruction, the trial court applied the wrong standard to

his motion for new trial, the evidence in support of the verdict is legally insufficient, and the trial

court erred in refusing to allow the contents of a letter to the Mexican Consulate into evidence.

We affirm.
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THE INDICTMENT & SUFFICIENCY OF THE EVIDENCE

In his first issue, appellant asserts he did not receive adequate notice of the offense

charged because there was a variance between the offense charged in the indictment and the

proof at trial. In his third issue, appellant asserts the evidence is insufficient to support the

verdict.

Appellant was indicted as follows:

[Appellant] on or about the 16th DAY OF JUNE, A.D., 1991, and anterior to the
presentment of this Indictment, in Jim Wells County and State of Texas, did then
and there intentionally cause the death of an individual, namely, APRIL ANN
REPKA, by stabbing her with a knife or an unknown sharp object, and [appellant]
was then and there in the course of committing the offense of robbery against
APRIL ANN REPKA. 1

The evidence at trial showed the following. In June 1991, April Repka lived with her

grandmother (Ann Jurena), had just graduated from high school, and received a graduation ring

from her father. April planned to attend Del Mar College in Corpus Christi. On June 20, 1991,

April’s father reported her as missing.

In May 2004, a farmer in Jim Wells County found skeletal remains on his property. In

May and June 2004, a human skull, other bones, and bracelets were recovered from the property

in brush close to a fence line. The remains were turned over to the Nueces County Medical

Examiner’s Office. In 2008, at the request of the Jim Wells County Sheriff’s Office, an FBI

Evidence Recovery Team searched the property again and located more human remains, a ring,

watch, and bracelet. The items were delivered to the custody of Anthony Daniel, a criminal

1
The jury charge instructed the jury that if it found appellant guilty of intentionally causing April’s death in the
course of committing or attempting to commit a robbery of her car, then the jury should find appellant guilty of
capital murder. The jury charge also instructed the jury that if it found appellant guilty of intentionally causing
April’s death, but had a reasonable doubt as to whether appellant was in the course of committing or attempting to
commit a robbery of her car, then the jury should find appellant guilty of murder. The jury found appellant guilty of
murder.

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investigator for the Victoria County Sheriff’s Department. Eventually, through DNA and dental

testing, the human remains found in the field were identified as April’s.

In 2007, before April’s remains were identified, Anthony Daniel had been assigned

April’s missing person’s case. During his investigation, Daniel developed an interest in Victor

Ortiz, a friend of April’s. He first attempted to locate Ortiz in Mexico. Ortiz was eventually

located in Florida, where he was being held under a Texas arrest warrant for aggravated robbery

of Jurena. While in custody in Florida, Ortiz said he would give a statement about how April

was killed, but he would not provide any names until his return to Texas. He only said “two

guys took April in the car and they left me behind, and they were gone for about an hour, and

they came back without April. And when I asked them what happened to April, they told me,

‘We killed the bitch.’” Once in custody in Texas, Ortiz told a different story, this time

implicating appellant in April’s death.

Ortiz’s testimony is the only evidence the State adduced tying appellant to April’s

murder. At trial, Ortiz said he met April in either 1990 or 1991 when they were both at the same

high school, and that April was a friend of his sister, Genoveva Ortiz. He was sixteen or

seventeen years old at the time and younger than April. Ortiz and appellant were friends,

appellant was several years older than Ortiz, and the two lived near each other. Ortiz thought

appellant met April near the end of 1990. On June 16, 1991, Ortiz and April planned a trip by

car to Corpus Christi, where they intended to rent an apartment together to share expenses,

although they were not romantically involved. They both had personal belongings in the car, and

April had money in a small can she hid under her car seat. Ortiz drove the car, which belonged

to April’s grandmother. Before heading to Corpus Christi, Ortiz and April decided to drive to

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appellant’s house in Robstown, Texas. Appellant asked Ortiz and April to drive him to Alice,

Texas, where his brother, Joe Zuniga, lived.

When they arrived at Joe’s house, he was not at home. Ortiz could not remember if they

got out of the car, but he thought they probably did. Once back in the car—Ortiz driving, April

in the front passenger seat, and appellant behind her in the back seat—April discovered her

money was not inside the little can. April accused appellant of taking the money, which he at

first denied. When April said she would call the police, appellant tried to calm her down by

telling her he would return the money if they allowed him to drive to a store. April agreed, and

appellant got into the driver’s seat, while Ortiz got into the back seat behind April. Appellant

drove them to a field, where he said he needed to urinate. Appellant got out of the car, walked

around the back to the front passenger side, opened the door, grabbed April by her hair, and

started hitting her. Ortiz got out of the car and told appellant to stop, at which point, “all of a

sudden [appellant] took a knife out and hit her with the knife, and I got scared and I ran.”

Appellant ran after Ortiz, holding the knife in his hand, knocked Ortiz down, and kicked

him several times. Ortiz, who said he weighed about ninety-five pounds at the time and

appellant was a bigger man, curled up into a ball. Ortiz then saw appellant go back to April who

was kneeling, with her head down and crying. Ortiz said he was 150 to 200 feet away from her.

He said appellant “went back, he grabbed the knife and started hitting her around the neck area.”

When asked what he meant by “hitting her,” Ortiz explained, “Well, I believe at that time he was

hitting her because I couldn’t see any blood, and I never never saw blood, so I didn’t know if he

was hitting her with the back side of the knife or the front.” Ortiz said he was scared, crying, and

had his head between his legs, but when he looked up, he “saw April fall back after [appellant]

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struck her around the neck and chest area a few times.” He said April fell back and he could not

see her because the grass was too high. He then put his head back down.

A few minutes later, Ortiz looked up and saw appellant near a fence where he assumed

appellant had dragged April. Appellant was standing over April and making the sign of the

cross; he appeared to be praying. “And he did it like ten times.” Ortiz said appellant then got

into the car, backed it up towards him, and said, “Get in, coward.” When asked why he got into

the car after appellant had just killed April, Ortiz said he “felt scared enough to do what he said.”

Ortiz said there was a light rain and appellant said, “God is crying because somebody had to

die.”

Appellant drove them to his brother Joe’s apartment in Alice, Texas. Appellant removed

April’s and Ortiz’s possessions from the car and gave them to Joe. Joe threatened Ortiz with a

knife, telling him to never speak about what happened. Appellant drove Ortiz to within a few

blocks of Ortiz’s house and left him. Ortiz said appellant also threatened him and said he would

kill Ortiz’s father and sister if Ortiz ever told anyone about what happened. When asked if he

believed appellant’s threat, Ortiz responded, “I just saw him kill April, and I did believe him.”

Appellant kept the car.

On cross-examination, Ortiz again explained that when he got out of the car and told

appellant not to hit April, “everything was happening so fast that by the time I knew it, he had

already hit her one time with the knife. And I say hit her, not stab her, because I never saw

blood. And that’s what made me think he was hitting her with the back side of the knife.” Ortiz

described the knife as having a folding blade, a white handle, and as being six to eight inches

long.

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The medical examiner, Dr. Rey Fernandez, testified the bones had been in place “for a

prolonged period of time . . . consistent with years.” He said the cause and manner of death

could not be determined. The State also offered into evidence an anthropological report prepared

by Dr. H. Gill-King, which estimated April’s remains had been in place “an interval of 5 to 15

years, perhaps somewhat longer.”

Ortiz said that after the murder, appellant would occasionally contact him because

appellant wanted to know what was happening and he wanted to know what, if anything, April’s

grandmother, Ann Jurena, knew. On one of these occasions, in February 1992, appellant

suggested he and Ortiz go to Jurena’s house to find out what she knew and to ask her for money

to buy beer. Ortiz said that, once at Jurena’s house, appellant “asked Ann for some money

because April was in need of it and that he would make sure that she get [sic] it. Ann didn’t fall

for it, she didn’t want to give him anything.” Ortiz said appellant got angry and pulled out a

knife and made him and Jurena’s grandson (who was also present) kneel down. He forced

Jurena to write two checks. Ortiz said appellant held a knife to his back because he “never

cooperated on taking the — the check.” Appellant and Ortiz then left Jurena’s house, and Ortiz

said he cashed one of the checks. After his return to Texas from Florida, Ortiz pled guilty,

pursuant to a plea bargain, to aggravated robbery of Jurena, and he was placed on deferred

adjudication community supervision for seven years. The plea bargain required Ortiz to

“cooperate and testify truthfully in any court proceeding regarding Carlos Zuniga [and] contact

Investigator, Tony Daniel every Friday from a landline.” Ortiz said he pled guilty to aggravated

robbery because he “did something that was not right [by cashing the check].”

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A. Notice and the Indictment

On appeal, appellant contends the State proved an entirely different offense, death by

bludgeoning instead of death by stabbing. Appellant asserts that, based on the indictment, he

was prepared to defend against the allegation that he stabbed April, but, because the indictment

did not provide him with sufficient notice that the State would prove only death by bludgeoning,

he was deprived of a fair opportunity to defend himself. We disagree both with appellant’s

argument and his characterization of Ortiz’s testimony as only proving death by bludgeoning.

A variance in pleading and proof can occur in two ways. Johnson v. State, 364 S.W.3d

292, 294 (Tex. Crim. App. 2012). First, a variance can involve the statutory language that

defines the offense, such as when a statute specifies alternate methods by which an offense could

be committed, the charging instrument pleads one of those alternate methods, but the State

proves, instead, an unpled method. Id. “For example, the retaliation statute makes it a crime to

threaten a ‘witness’ or ‘informant.’” Id. “The first type of variance occurs if the State pleads

only ‘witness’ in the charging instrument and proves only the unpled element of ‘informant’ at

trial.” Id. Second, a variance can involve a non-statutory allegation that is descriptive of the

offense in some way, such as when the charging instrument pleads the offense was committed

with a knife, but the State proves at trial that a baseball bat was used. Id.

Courts tolerate some variation in pleading and proof for non-statutory allegations, such as

the one alleged in this case. Id. at 295. “We tolerate ‘little mistakes’ that do not prejudice the

defendant’s substantial rights but we will not tolerate a variance that really amounts to a failure

to prove the offense alleged.” Id. “What is essential about variances with respect to non-

statutory allegations is that the variance should not be so great that the proof at trial ‘shows an

entirely different offense’ than what was alleged in the charging instrument.” Id. “For example,

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in a murder prosecution, the victim’s name need not be proved with exactness, but the State must

prove that the victim alleged in the indictment is the same person as the victim proved at trial.”

Id. “The key to this conclusion is that each victim is an allowable unit of prosecution for the

offense of murder.” Id. “If there are multiple murder victims, the State may obtain multiple

murder convictions.” Id. at 295-96. Therefore, the murder of one individual is a different

offense from the murder of a different individual. Id. at 296. “But some types of facts—such as

the method by which a murder is committed—do not relate at all to the allowable unit of

prosecution.” Id. “The State could allege ‘poisoning, garroting, shooting, stabbing, or

drowning,’ of a single individual, and those different acts would simply be alternate methods of

committing a single offense.” Id. “With only one victim, there can be only one murder,

regardless of how that murder is committed.” Id.

In this case, the alleged variance involves a non-statutory allegation that has nothing to

do with the allowable unit of prosecution and, therefore, cannot be a basis for saying that the

proved offense is different from the one that was pled. “‘Stabbing with a knife’ and

‘bludgeoning with [the knife]’ are two possible ways of murdering [April], but they do not

constitute separate offenses.” Id. at 298. Although these methods of committing murder

describe an element of the offense—the element of causation—murder is a result-of-conduct

crime. See id. What caused a person’s death is not the focus or gravamen of the offense; the

focus or gravamen of the offense is that the person was killed. See id. “Variances such as this

can never be material because such a variance can never show an ‘entirely different offense’ than

what was alleged.” Id.

Here, appellant was charged with intentionally causing April’s death. The variance

alleged by appellant involves the charged act of “stabbing” April with a knife or sharp object

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versus “bludgeoning” April with a knife. But, contrary to appellant’s contention, Ortiz did not

testify that appellant “bludgeoned” April. Instead, Ortiz testified that appellant “hit April around

the neck and chest area a few times,” and he explained he thought appellant “was hitting her

because I couldn’t see any blood, and I never never saw blood, so I didn’t know if he was hitting

her with the back side of the knife or the front.” Ortiz also said that once April fell back, he

could not see her anymore because the grass “was kind of high,” and he was 150 to 200 feet

away. Ortiz testified that “when [appellant] took the knife out, he kind of went like this on her,

on the chest, a couple of times. And I never saw blood, so I figured that he was only hitting her,

it was only, you know, just a — like a punch, not — not a stabbing. But I never saw blood, not

even after — after he had knocked me down, I had run, I never saw the blood, never.” Ortiz said

he ran 150 to 200 feet away, and he did not see blood from that distance.

Ortiz’s testimony describes the causation element of the offense. “What caused [April’s

death] is not the focus or gravamen of this offense.” In a result-of-conduct crime, such as

intentional murder, the culpable mental state focuses on the result of the conduct. Cook v. State,

884 S.W.2d 485, 490 (Tex. Crim. App. 1994). “The precise act or nature of conduct in this

result-oriented offense is inconsequential.” Johnson, 364 S.W.3d at 298. Because the act that

caused April’s death does not define or help define the allowable unit of prosecution for this type

of offense, the alleged variance cannot be material. Id. (holding same in aggravated assault case

where variance involved the charged acts of “hitting the victim with his hand” and “twisting the

victim’s arm with his hand” versus the proved act of “throwing the victim against the wall”).

Immaterial non-statutory variances do not render the evidence legally insufficient. Id. at 299.

We conclude the variance, if any, is not so great that the proof at trial showed an entirely

different offense than what was alleged in the charging instrument.

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Appellant concedes the alleged variance here is immaterial, but he relies on the following

footnote in Johnson as support for his argument that the variance is great enough to implicate

notice: “We do not address whether a variance under this third category [other types of variances

involving immaterial non-statutory allegations] could be significant enough to warrant a new

trial based upon lack of notice.” See id. n.47. Appellant contends his attorney would have asked

the medical examiner different questions if he had known the State would prove bludgeoning.

For example, appellant contends his trial counsel would have asked the medical examiner

whether the skeleton of someone beaten to death by a knife would show signs of trauma, whether

any trauma on the skeleton corresponded to the details of a bludgeoning, and whether the

“beating described by [Ortiz] could prove fatal to a healthy woman.” However, defense counsel

did not ask any similar questions based on death by stabbing.

The medical examiner testified the cause and manner of death could not be determined.

When asked whether he could draw any conclusion from the skeletal remains, Fernandez

repeated that cause of death could not be determined. On cross-examination, Fernandez also

admitted he did not have a complete skeleton, some of the bones had been heavily scavenged,

and he could not rule out death by natural causes, suicide, or by accident such as accidental

poisoning or being hit by a train. Despite having an almost intact skull, no questions were asked

about the type of damage a stabbing would have inflicted on the skull. While it is true counsel

did not question Fernandez about a “bludgeoning,” he also did not question Fernandez about the

signs of a stabbing.

Because the medical examiner admitted the manner and cause of death could not be

determined, and because defense counsel did not examine the medical examiner about any

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manner of death, we do not believe appellant’s complaint that the variance was significant

enough to warrant a new trial based on lack of notice has merit.

B. Sufficiency of the Evidence

Appellant asserts the State presented no evidence of an intentional murder that occurred

on June 16, 1991. According to appellant, the State presented, at most, evidence only of an

assault. Because murder is a result-of-conduct offense, the question is not whether appellant’s

conduct was intentional or knowing; the question is whether the result of that conduct, i.e.,

April’s death, was intentional or knowing.

To prove appellant committed murder, the State was required to show appellant

intentionally or knowingly caused April’s death or intended to cause serious bodily injury and

committed an act clearly dangerous to human life that caused her death. TEX. PENAL CODE ANN.

§ 19.02(b) (West 2011). The Penal Code defines the culpable mental states as follows:

(a) A person acts intentionally with respect to the nature of his conduct or to a
result of his conduct when it is his conscious objective or desire to engage in the
conduct or cause the result.
(b) A person acts knowingly with respect to the nature of his conduct or the
circumstances surrounding his conduct when he is aware of the nature of his
conduct or that the circumstances exist. A person acts knowingly with respect to
the result of his conduct when he is aware that his conduct is reasonably certain to
cause the result.

Id. § 6.03(a), (b).

In our review of the evidence, we ask whether the jury could have rationally determined

beyond a reasonable doubt from the totality of the circumstantial evidence viewed in a light most

favorable to its verdict that appellant intended to cause April’s death. See Jackson v. Virginia,

443 U.S. 307, 318 (1979); Brooks v. State, 323 S.W.3d 893, 895, 899 (Tex. Crim. App. 2010).

Intent is most often proven through the circumstantial evidence surrounding the crime, and the

jury may infer the requisite intent from the acts, words, and conduct of the accused, and the

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method of committing the crime and the nature of the wounds inflicted on the victim. Manrique

v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring); see also Conner

v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). In a murder case, evidence of a

particularly brutal or ferocious mechanism of death, inflicted on a helpless victim, can be

probative on the issue of intent or knowledge. See Patrick v. State, 906 S.W.2d 481, 487 (Tex.

Crim. App. 1995). Juries are also permitted to draw multiple reasonable inferences from the

evidence (direct or circumstantial), but they are not permitted to draw conclusions based on

speculation. Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007). Under the Jackson

standard, we must determine “whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light most favorable to

the verdict.” Id. at 16-17.

Here, the record reveals that in June 1991, appellant dragged April from the car by her

hair, repeatedly “hit” April with a knife, moved her body to a fence line, stood over or near her

body making the sign of the cross, appeared to be praying, and he told Ortiz, “God is crying

because somebody had to die.” Fernandez testified the death occurred a number of years before

April’s skeletal remains were discovered in 2004. King’s forensic report states April’s remains

were in the field for an interval of five to fifteen years, perhaps longer, placing April’s death as

early as 1989. Viewing the evidence in a light most favorable to the verdict, we conclude a

rational jury could have found beyond a reasonable doubt that appellant intentionally or

knowingly killed April on June 16, 1991. 2

2
Appellant also challenges the sufficiency of the evidence by arguing Ortiz’s testimony was “divorced from reality”
and “a rational jury could not have relied on Ortiz’s testimony to convict” appellant. Along these same lines,
appellant also contends the jury was not rational. Neither argument has merit. The jury, as the fact finder, is entitled
to judge the credibility of the witnesses, and can choose to believe all, some, or none of the testimony presented by
the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We defer to the jury’s determinations
of witness credibility and weight of the evidence, and may not substitute our judgment for that of the fact finder.
See Brooks, 323 S.W.3d at 899; King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal

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Appellant also asserts Ortiz was the functional equivalent of an accomplice or a jailhouse

snitch, and his testimony should have been, but was not corroborated. Therefore, according to

appellant, Ortiz’s testimony should have been excluded, and without his testimony, the evidence

is insufficient to support the verdict. However, for the reasons explained below, we do not

believe Ortiz was an accomplice whose testimony necessitated corroboration.

ACCOMPLICE WITNESS

Appellant asserts the trial court erred in not giving him an accomplice witness instruction.

According to appellant, Ortiz was present during all stages of the crime—during the car ride,

throughout the offense itself, and during Jurena’s robbery—therefore, he is an accomplice as a

matter of fact. Appellant argues that Ortiz’s “self-implication in the Jurena robbery provides the

proper inference for the jury to find that Ortiz [was] an accomplice in” April’s murder.

Appellant’s logic is that without Ortiz’s name on the check written by Jurena, the State could not

indict him; without an indictment, the State could not secure a plea bargain; without a plea

bargain with Ortiz, the State could not convict appellant.

A conviction may not be based upon the testimony of an accomplice unless that

testimony is corroborated by other non-accomplice witness evidence that tends to connect the

defendant to the crime. TEX. CODE CRIM. PROC. ANN. art. 38.14 (West 2005). A witness may be

an accomplice either as a matter of law or as a matter of fact; the evidence in a case determines

which jury instruction, if any, needs to be given. Cocke v. State, 201 S.W.3d 744, 747 (Tex.

Crim. App. 2006). A trial court is obligated to instruct the jury that a witness is an accomplice as

a matter of law only if there is no doubt that the witness is an accomplice. Druery v. State, 225

S.W.3d 491, 498 (Tex. Crim. App. 2007). A matter-of-law accomplice instruction is appropriate

sufficiency analysis, appellate court “may not re-weigh the evidence and substitute our judgment for that of the
jury”).

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when the witness is charged with the same offense as the defendant or with a lesser-included

offense, or the evidence clearly shows that the witness could have been so charged. Id. If the

evidence as to a witness’s status as an accomplice is conflicting, the jury should determine

whether the witness is an accomplice as a matter of fact under instructions defining an

“accomplice.” Id. at 498-99; Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998).

However, there must be some evidence of an affirmative act on the part of the witness to assist in

the commission of the charged offense before such an instruction is required. Druery, 225

S.W.3d at 499. The trial court is not required to give the jury an accomplice witness instruction

when the evidence is clear that the witness is neither an accomplice as a matter of law nor as a

matter of fact. Cocke, 201 S.W.3d at 748.

“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.” Druery, 225

S.W.3d at 498; see also Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004). This

participation must include an affirmative act in promotion of the commission of the offense with

which the defendant is charged. Druery, 225 S.W.3d at 498; Paredes, 129 S.W.3d at 536. A

witness is not an accomplice merely because the witness knew of the offense and did not disclose

it, or even if the witness concealed the offense. Druery, 225 S.W.3d at 498. In addition, the

witness’s mere presence at the scene of the crime does not render that witness an accomplice

witness. Id. And, complicity with a defendant in the commission of another offense separate

from the charged offense does not make one an accomplice witness as to the charged offense.

Id.

On appeal, as support for his argument, appellant points to (1) Ortiz’s presence in the car

during the ride to the field and his presence outside the car during the offense; (2) Ortiz did

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nothing to stop or prevent April’s murder; (3) Ortiz did not flee the scene during or after the

incident; and (4) his presence during the robbery of Jurena. However, at no point did Ortiz take

any affirmative act to assist in murdering April, and his mere presence at the scene of the

murder, even coupled with his complicity with appellant in the later robbery of Jurena does not

render him an accomplice witness. Therefore, we conclude the trial court was not required to

give the jury an accomplice witness instruction because the evidence is clear that Ortiz is not an

accomplice either as a matter of law or as a matter of fact. See Cocke, 201 S.W.3d at 748.

MOTION FOR NEW TRIAL

Appellant moved for a new trial on the grounds that he was improperly denied an

accomplice witness as a matter of fact jury instruction. Appellant’s argument before the trial

court differs somewhat from his argument above. At the new trial hearing, appellant’s counsel

argued there were two incidents that made Ortiz an accomplice. First, after the murder, Ortiz got

back into April’s car, which at this point in time neither he nor appellant had permission to take.

Second, when he and appellant went to Joe Zuniga’s apartment after the murder, Ortiz was left in

the car “and in possession of the stolen property [April’s personal possessions].” At this point,

according to appellant’s attorney, Ortiz was the only person in control of that stolen property and

the only one in the car. Appellant’s attorney conceded there was no evidence of an affirmative

act on Ortiz’s part as to the murder, but counsel argued Ortiz participated in the robbery of

April’s car and her personal possessions. Because the robbery was in the course of the murder,

appellant concludes, Ortiz’s status as an accomplice should have been submitted to the jury.

Both at the hearing and on appeal, appellant asserts the Court of Criminal Appeals’ decision in

Harris v. State, 645 S.W.2d 447 (Tex. Crim. App. 1983), controls. On appeal, appellant

contends the trial court abused its discretion by acting outside the guiding principles of Harris.

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In Harris, the Court of Criminal Appeals reiterated the principal that if there is a conflict

in the evidence the court should charge the jury on the question of whether the witness was an

accomplice as a matter of fact. Id. at 456. The Court examined the record to determine whether

there was a conflict in the evidence such that a jury could find that the juvenile witness was an

accomplice as a matter of law. First, the Court observed conflicts in the juvenile’s testimony at

trial related to “consciousness of guilt.” She admitted making prior statements that she believed

she was guilty because she was “just a part of it as they were”; she first denied, then admitted she

tried to escape custody; and she admitted no one forced her to remain with the killers after the

murder and she could have gone home Id. at 456-57. Second, the Court noted that proceedings

had begun to certify the juvenile for trial as an adult, but were not completed, and the juvenile

testified she had a “deal” with the State, exchanging her testimony for a favorable sentencing

recommendation. Third, the Court observed that the juvenile was “a witness whose testimony

formed virtually the State’s entire case against appellant, and one who had every reason to shade

her testimony to downplay her own involvement in that offense.” Id. at 457. Finally, the Court

noted the juvenile’s “role may have been less cut and dried and more culpable.” Id. Her actions

and testimony and the evidence as a whole, especially her action in taking possession of the

victim’s truck without permission or instruction by anyone, while the killing was still in

progress, raised the fact issue of whether, prior to or contemporaneous with the criminal event,

she was a party to the agreement to kill the deceased for his truck. Id. at 459. In conclusion, the

Court stated the jury should have been charged on whether the juvenile was an accomplice and

whether her testimony was corroborated.

This case is distinguishable from Harris because here, unlike in Harris¸ Ortiz

consistently testified appellant pulled April from the car by her hair, appellant “hit” April with

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his knife, Ortiz tried to stop appellant before becoming scared and running away, and appellant

said “somebody had to die.” On this record, we conclude the trial court did not abuse its

discretion in denying appellant’s motion for a new trial.

LETTER TO MEXICAN CONSULATE

In 2007, when Daniel was investigating April’s missing person’s case, he developed

information that Ortiz was in Mexico. Daniel wrote a letter to the Mexican Consulate asking for

assistance in locating Ortiz. In his final issue, appellant asserts the letter should have been

admitted because it was not offered for the truth of the matter asserted, but instead, to show

Daniel’s interest in Ortiz and how Daniel was able to find Ortiz. Appellant argues the letter falls

within an exception to hearsay because it showed Daniel’s state of mind. Appellant also

contends the trial court did not allow him to cross-examine Daniel about the letter.

First, appellant’s attorney did not attempt to offer the letter into evidence. In fact, when

defense counsel asked Daniel, “And it’s the same Victor Ortiz that you referred to in your letter

as having a warrant for his arrest,” the prosecutor objected stating, “Your Honor, you’ve already

ruled that the contents of that letter are not being [sic] admissible.” Defense counsel replied, “I

don’t think the Court ruled that at all,” and the trial court stated, “There hasn’t been an offer on

that, so I haven’t made a ruling yet.” Therefore, appellant’s complaint that the trial court erred

by not admitting the letter into evidence has no basis in the record.

In his reply brief, appellant contends his complaint regarding the letter has not been

waived because he did not seek to admit the letter; instead, he sought to admit the contents of the

letter. Appellant contends the trial court improperly ruled the contents of the letter as hearsay

because the contents revealed Daniel’s state of mind when he wrote the letter and implicated

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Ortiz as Daniel’s prime suspect in April’s murder. We disagree with appellant’s characterization

of what happened at trial.

Appellant’s attorney started to question Daniel about an interview he conducted with

Ortiz’s sister, Genoveva Ortiz. Genoveva had told Daniel she had seen April alive as late as

2001. When the State raised a hearsay objection, appellant’s counsel stated that Genoveva’s

interview caused Daniel to focus his case on a missing person, and not a fatality, and this led

Daniel to contact the Marshal’s Service about locating Ortiz in Mexico, “because [Genoveva]

believed April was still alive in Mexico with Victor Ortiz as late as March of 2007.” The trial

court excused the jury and allowed appellant’s attorney to question Daniel about a February 6,

2007 conversation he had with Genoveva. When the State again raised a hearsay objection,

appellant’s attorney responded that what Genoveva told Daniel was not being offered for the

truth of the matter asserted. Instead, he offered Daniel’s testimony about the conversation “to

demonstrate that this officer had other leads that he failed to follow-up on and opted for [the]

easiest option, which was simply going after [appellant] . . . .” Following additional questions

about Daniel’s conversations with Genoveva, the court recessed for the day without making a

ruling.

The next day, the trial court asked appellant’s counsel if he wanted to question Daniel

about the unavailability of Ortiz’s sister, who was living in Florida. Counsel responded as

follows: “Not so much about her unavailability, Your Honor, as to what she would have said, or

what this witness [Daniel] would have said about what she — he was told as a bill of exception

to the Court’s ruling on our hearsay.” The trial court again allowed counsel to question Daniel

outside the jury’s presence. Counsel began by showing Daniel the letter he had written to the

Mexican Consulate, stating, “And in this letter you reference some things that you were told by

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Genoveva Ortiz; is that correct?” Daniel replied affirmatively. In the letter, Daniel stated to the

Consulate that, “It is apparent that Genoveva Ortiz has information about this case [April’s case]

she does not want to reveal.” Counsel then proceeded to ask Daniel not about the contents of the

letter, but instead, about what he believed Genoveva was not revealing to him about April’s

whereabouts. Following these questions, the trial court sustained the State’s hearsay objection.

Except for the brief reference to the letter, at no time did counsel attempt to create a bill

of exception about what questions he would have asked about the letter’s contents. His questions

were focused entirely on what Genoveva told Daniel. Therefore, appellant’s complaint regarding

the contents of the letter is waived. See TEX. R. APP. P. 33.2 (“To complain on appeal about a

matter that would not otherwise appear in the record, a party must file a formal bill of

exception.”).

Appellant’s complaint that the trial court did not allow cross-examination of Daniel about

the letter also has no basis in the record. Defense counsel’s examination of Daniel—with the

jury present—about the letter and his reasons for writing the letter covers several pages of the

reporter’s record. Also, on appeal, appellant points to no bill of exception offered as to questions

he was prevented from asking Daniel about the letter. Therefore, this complaint lacks merit.

CONCLUSION

For the reasons stated above, we overrule appellant’s issues on appeal and affirm the trial

court’s judgment.

Sandee Bryan Marion, Justice

Publish

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