In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00341-CR
PABLO RODRIGUEZ GUZMAN JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 121st District Court
Terry County, Texas
Trial Court No. 6831, Honorable Kelly G. Moore, Presiding
August 1, 2016
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, Pablo Rodriguez Guzman Jr., appeals his conviction for the offense of
possession with intent to deliver a controlled substance listed in Penalty Group 1, in the
amount of four grams or more but less than 200 grams,1 enhanced by an allegation of
one previous felony conviction.2 The convicting jury assessed appellant’s punishment
at confinement in the Institutional Division of the Texas Department of Criminal Justice
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a), (d) (West 2010).
2
See TEX. PENAL CODE ANN. § 12.42(c)(1) (West Supp. 2015).
(ID-TDCJ) for a period of 15 years. Appellant has perfected his appeal and presents
two issues for our consideration. First, appellant contends that the evidence was
insufficient to support the jury’s verdict because there was insufficient corroboration of
the accomplice witness testimony. Second, appellant contends that the trial court
committed charge error by failing to incorporate an application of the accomplice
witness instruction within an application paragraph in the court’s charge. Disagreeing
with appellant’s contentions, we will affirm.
Factual and Procedural Background
On November 16, 2014, appellant and Isabelle Gamez were involved in a one-
car rollover in Terry County, Texas. Department of Public Safety Trooper Pablo Ramos
was dispatched to the scene of the accident. Prior to Ramos’s arrival, first responders
from the Wellman Volunteer Fire Department and the Brownfield Regional Medical
Center (BRMC) arrived on the scene.
Appellant and Gamez were out of the vehicle when the first responders arrived
on the scene. According to the witnesses, appellant was walking around the scene
searching for his cell phone. The witnesses reported that appellant seemed to have
little interest in Gamez’s condition, but was overly focused on finding his cell phone.
Appellant ultimately found his cell phone within 15 feet of where the methamphetamine
was found in the median near the wreck.
Upon arrival at the scene, Ramos began working the scene as an automobile
wreck. Appellant and Gamez had already been transported by emergency medical
personnel to the BRMC by the time of Ramos’s arrival on the scene. During his
2
accident investigation, he was shown two plastic bags of a white crystal substance that
he believed to be methamphetamine. The two plastic bags of methamphetamine had
been previously found by one of the volunteer fireman from Wellman who responded to
the accident call. One of the bags was found near the front passenger tire of the
wrecked vehicle. The second bag was found a few feet in front of the same vehicle.
Ramos secured the bags and ultimately turned them over to the Department of Public
Safety laboratory for testing.
Bobby Jones was the paramedic who was dispatched to the accident scene.
Jones described appellant as being uncooperative with EMS personnel. Eventually,
appellant and Gamez were transported to BRMC. During the drive to the hospital,
Jones testified that he overheard appellant talking to Gamez in Spanish. Jones
eventually asked that the two speak English so he could gauge Gamez’s ability to
respond. Jones testified that he overheard appellant telling Gamez not to say anything.
Upon arrival at BRMC, Saluna Ruiz, an ER tech, overheard appellant tell Gamez
to “get your story straight.” Ruiz further observed that appellant had two cell phones in
his possession. Kristi Bruno, an ER nurse, also heard appellant tell Gamez to keep the
story straight that they didn’t know anything about what was at the scene.
While being treated at the emergency room, Gamez was found to possess
cocaine and marijuana in her clothing. She was subsequently arrested for possession
of these drugs and transported to the Terry County jail.
3
Ramos arrived at the hospital and questioned appellant about the accident.
Eventually, appellant was charged with possession of methamphetamine and
transported to the Terry County jail.
Upon arrival at the Terry County jail, appellant and Gamez were placed in
separate holding cells. In addition to the aforementioned, also housed in the cells were
Rosa Guzman and Roger Phergson. The four began having conversations with each
other across the cells. All of the conversations were recorded on the jail’s audio and
video recording system. From the video and audio recordings, the following is seen and
heard:
1. Appellant was trying to advise Gamez about what to say to the
authorities regarding the methamphetamine.
2. Appellant told Gamez repeatedly to keep her story straight.
3. Appellant insisted that as long as they keep their story straight the
authorities will not be able to charge them with the methamphetamine.
4. Appellant told Gamez that the methamphetamine could have been in
the median for years.
5. Again, appellant told Gamez to keep her story straight “to the grave.”
6. Appellant advised Gamez that if the authorities find the
methamphetamine at least 25 feet from the vehicle, they can’t prove
possession.
The State called Darrell Walker, a DEA agent, who testified about his work history and
experience as an investigator in drug related cases. He testified that the normal amount
of methamphetamine trafficked to an individual user is in the 1/4 to one gram range.
Walker further opined that the amount of methamphetamine found in this incident, 54
grams, was substantially more than would be typically found on a user for personal
4
consumption. Further, Walker opined that the amount involved in this incident would
have a street value of approximately $5,400. Walker also explained that in his
experience individuals dealing in drugs often carry more than one cell phone. He
explained that one would generally be referred to as a “burner” phone, meaning that it
was meant to be a disposable phone with prepaid minutes that could be discarded.
At the conclusion of the State’s case, the appellant rested without calling any
witnesses. Both sides closed and the case was submitted to the jury. After the close of
the evidence, the trial court prepared its charge to the jury. In this case, the court’s
charge contained a paragraph concerning accomplice witness testimony. See TEX.
CODE CRIM. PROC. ANN. art. 38.14 (West 2005). Appellant made no objections to the
charge nor did appellant request any instructions.
After the jury heard the court’s charge read to them and the final arguments of
trial counsel, it began its deliberations. Thereafter, the jury returned a verdict finding
appellant guilty of possession of methamphetamine with intent to deliver in an amount
of four grams or more but less than 200 grams. After hearing the punishment evidence,
the jury returned a verdict of 15 years’ confinement in the ID-TDCJ.
Appellant has perfected his appeal and has brought forth two issues. First,
appellant contends that the evidence was insufficient to support the jury’s verdict
because there was insufficient corroboration of the accomplice witness testimony.
Second, appellant contends that the trial court committed charge error by failing to
incorporate an application of the accomplice witness instruction within the application
paragraph of the court’s charge. We will affirm.
5
Accomplice Witness Testimony
Appellant’s first issue contends that the accomplice witness testimony of Gamez
was insufficiently corroborated under the accomplice witness rule. The trial court
recognized that Gamez was an accomplice witness as a matter of law and so charged
the jury. Accordingly, the question before the Court is whether there is sufficient
corroboration of her testimony so as to sustain the verdict of guilty as found by the jury.
Standard of Review and Applicable Law
The Texas Code of Criminal Procedure sets forth the statutory requirement for
corroboration of accomplice witness testimony. Article 38.14 provides as follows:
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.
See TEX. CODE CRIM. PROC. ANN. art. 38.14.
In determining whether accomplice witness testimony is properly corroborated,
we refer to the guidelines provided by the Texas Court of Criminal Appeals in Smith v.
State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011). First, we must decide whether the
non-accomplice evidence tends to connect the appellant to commission of the crime.
Id. The sufficiency of such non-accomplice evidence is determined on a case-by-case
basis according to the facts of the particular case under review. See id. The direct or
circumstantial non-accomplice evidence is sufficient corroboration if it shows that
rational jurors could have found that it sufficiently tended to connect the accused to the
offense. Id. If there are conflicting views of the evidence—one that tends to connect
6
the appellant to the offense and one that does not—we will defer to the factfinder’s
resolution of the evidence. Id.
Next, there needs to be only some non-accomplice evidence that tends to
connect appellant to the crime, not to every element of the crime. See Joubert v. State,
235 S.W.3d 729, 731 (Tex. Crim. App. 2007) (per curiam). Another way the Texas
Court of Criminal Appeals has described the “tends to connect” requirement is that “the
evidence must simply link the accused in some way to the commission of the crime and
show that rational jurors could conclude that this evidence sufficiently tended to connect
[the accused] to the offense.” Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App.
2009) (quoting Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008)).
Additionally, all of the non-accomplice evidence is viewed together, rather than as
isolated, unrelated activities, to determine whether it tends to connect appellant to the
offense. See id. at 511. Finally, if the combined weight of the non-accomplice evidence
tends to connect the defendant to the offense, then the requirement of Article 38.14 is
met. See Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999) (en banc).
Analysis
In analyzing the evidence that tends to connect appellant to the
methamphetamine found at the scene of the accident, we begin with appellant’s actions
on the night in question. When the members of the Wellman Volunteer Fire Department
arrived on the scene, they found appellant walking around the scene of the accident
seemingly more concerned with finding his cell phone than with any injuries that he or
his passenger, Gamez, might have suffered. By itself, this seems to be a bit unusual
7
but not necessarily something that would connect appellant to the methamphetamine
that was later found. However, when viewed from the totality of the circumstances, as
described in the trial testimony, it takes on a different significance. Remembering
Walker’s testimony that individuals dealing in drugs often carry two cell phones, one of
which is a “burner” phone over which he conducts his drug trade, appellant’s
preoccupation with finding the lost cell phone takes on a different complexion.
Next, the record contains evidence of appellant’s efforts, during appellant’s
transportation to BRMC in the same ambulance with Gamez, to make sure that Gamez
says nothing to the authorities. The subject matter about which appellant was
instructing Gamez to say nothing becomes clearer later in the trial; from the evidence
obtained from the jail audio and video recordings, the subject matter of the
methamphetamine becomes clear.
Upon arrival at the BRMC, ER tech Ruiz, overheard appellant telling Gamez to
get her story straight. Additionally, Ruiz noted that appellant had two cell phones in his
possession. While appellant and Gamez were being treated in adjoining beds at the
emergency room, Nurse Bruno overheard appellant tell Gamez to keep the story
straight that they didn’t know anything about what was at the scene. The item that
appellant was urging Gamez to continue saying they did not know anything about is the
methamphetamine located at the scene of the wreck. The record makes this
abundantly clear, for the cocaine and marijuana was found on Gamez at the hospital.
The only contraband found at the scene was the methamphetamine.
8
Then there are the various statements made by appellant directed toward Gamez
while they were being held in the holding area of the Terry County jail. These were
recorded by the jail audio and video recording equipment and were played for the jury.
In these statements, appellant is heard coaching Gamez about what to say to the
authorities and advising her that they will be fine, if she will keep her story straight.
Later, he is heard referring to the methamphetamine in three different statements. First,
appellant advises Gamez that the authorities will not be able to charge them with the
methamphetamine if they keep their story straight. Then, appellant says that the
methamphetamine could have been in the median for years. Finally, appellant tells
Gamez that the authorities will not be able to charge them with the methamphetamine
because it was 25 feet from the wreck. Interestingly enough, one of the
methamphetamine bags was found approximately 20 feet or so from the wreck.
The testimony of DEA agent Walker also sheds some light on the case before
the Court. From Walker’s testimony, we learn that drug dealers normally have multiple
cell phones. On the night in question, appellant was in possession of two cell phones.
All of this evidence leads to the conclusion that appellant knew about the
methamphetamine located at the scene of the accident. Further, according to the
testimony, Gamez passed out at the scene. She testified that she gave the
methamphetamine to appellant. The logical conclusion is that appellant’s continued
reference at the jail to the methamphetamine could only make sense if he is the one
that threw it away at the accident scene. Such a conclusion would be a rational
conclusion on the part of the jury, and one to which we must defer. See Smith, 332
S.W.3d at 442. Remembering that we are instructed to view the non-accomplice
9
witness evidence collectively and not in isolation, we are left with the conclusion that
this evidence tends to connect appellant to the methamphetamine in question. See
Simmons, 282 S.W.3d at 508. It is the combined weight of this evidence that meets the
requirement for evidence that tends to connect appellant to the offense for which he has
been convicted. See Cathey, 992 S.W.2d 462. Accordingly, appellant’s first issue is
overruled.
Appellant’s brief entered into a discussion of the law of parties. That is, under
the posture of this case, a bit unusual. The State requested a charge on the law of
parties and the trial court denied the request. Appellant’s trial counsel neither joined the
State’s request nor did it object to the trial court’s denial. Without any specific citation to
cases or authority, appellant simply states that the law of parties affects the calculus on
the sufficiency of the evidence. Whatever appellant’s contention is regarding this
procedural fact, he is in error. Appellant’s liability as a principal or under a parties
theory is of no relevance under an Article 38.14 analysis. See Campos v. State, 473
S.W.3d 907, 914 n.7 (Tex. App.—Amarillo 2015, no pet.) (citing Joubert, 235 S.W.3d at
731).
Appellant then entered into a discussion regarding the law of evidentiary
sufficiency in drug cases. A review of this argument leads to the conclusion that
appellant’s argument is premised on the fact that there was insufficient corroboration of
Gamez’s accomplice witness testimony and, therefore, insufficient evidence to sustain
the jury’s verdict. However, we have held that her testimony was sufficiently
corroborated. We need not further delve into this subject.
10
Accomplice Witness Charge
Appellant’s second issue contends that the trial court committed reversible error
because the trial court failed to apply the law of accomplice witness testimony to the
facts of the case. This failure, according to appellant, resulted in egregious harm to
appellant. The record reveals that the trial court gave a jury instruction regarding the
use of accomplice witness testimony. At the charge conference, before submission of
the charge to the jury, appellant did not object to the court’s instruction regarding
accomplice witness testimony.
Standard of Review
Appellate review of alleged jury charge error is a two-step process. Kirsch v.
State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Initially, the reviewing court must
determine if the charge was erroneous. Id. If we find that error occurred, we must then
analyze the error for harm. Id. After we analyze the error for harm, we must review the
record to determine whether appellant objected to the charge at issue. See Middleton
v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003) (en banc). The degree of harm
necessary for reversal depends upon whether error was preserved. Id. (quoting Hutch
v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (en banc)). If appellant properly
objected to the charge, “the standard of harm is whether ‘the error appearing from the
record was calculated to injure the rights of [appellant]’ which we have construed as
‘some harm.’” Celis v. State, 416 S.W.3d 419, 423 n.3 (Tex. Crim. App. 2013) (quoting
Article 36.19 and Trevino v. State, 100 S.W.3d 232, 242 (Tex. Crim. App. 2003) (per
curiam)). “Conversely, unpreserved charge error warrants reversal only when the error
11
resulted in egregious harm.” Id. (citing Pickens v. State, 165 S.W.3d 675, 680 (Tex.
Crim. App. 2005) (en banc)).
Analysis
Our first task is to ascertain whether the jury charge given by the trial court was
in error. See Kirsch, 357 S.W.3d at 649. Appellant contends that the trial court erred by
“failing to apply the law to the facts.” To properly analyze this issue, we set forth the
applicable paragraph of the court’s charge below.
Upon the law of accomplice witness testimony, you are instructed that
Isabelle Gamez was an accomplice, if any offense was committed, as
alleged in the indictment. With this in mind, you are further instructed that
you cannot convict the [appellant] upon Isabelle Gamez’s testimony,
unless you first believe that her testimony is true and shows the guilt of the
[appellant] as charged in the indictment, and then you cannot convict the
[appellant] unless Isabelle Gamez’s testimony is corroborated by other
evidence tending to connect the [appellant] with the offense charged. The
corroboration is not sufficient if it merely shows the commission of an
offense, you must believe beyond a reasonable doubt that the [appellant]
is guilty of the offense charged against him.
The record reflects that the traditional application paragraph was the next paragraph in
the court’s charge.
Appellant relies on two cases that stand for the proposition that, if the trial court
charges the jury on an accomplice witness issue, it should apply the law to the facts in
the jury charge. See Holladay v. State, 709 S.W.2d 194, 198 (Tex. Crim. App. 1986);
Doyle v. State, 133 S.W.2d 972, 972–73 (Tex. Crim. App. 1939). The first case cited by
appellant, Holladay, makes a passing reference to applying the law to the facts when it
stated, “In the past, when the provisions of Art. 38.14, supra, and it precursors, were
12
implicated in a case, the charge to the jury was held sufficient if it: (1) defined the term
accomplice; (2) gave the statutory inhibition against conviction on uncorroborated
accomplice testimony; (3) stated that the corroboration must be as to some material
matter tending to connect the accused with the commission of the offense; and (4)
applied the law to the facts.” 3 Hollady, 709 S.W.2d at 198. In Doyle, the question was
the failure of the trial court to instruct the jury that it must first believe the testimony of
the accomplice to be true. See Doyle, 133 S.W.2d at 973. This, according to the
appellant in Doyle, was the failure to apply the law to the facts of the case. See id. The
Doyle court agreed, concluding that this failure—the failure to require the jury to find the
testimony of the accomplice to be true—was the operative failure to apply the law to the
facts of the case and, thus, error. See id.
In the case before the Court, the instruction given by the trial court is not simply
the abstract rule from Article 38.14. See TEX. CODE CRIM. PROC. ANN. art. 38.14. It is an
application of the law to the facts tailored to meet the evidence. Specifically, the jury
was first instructed that Gamez was an accomplice witness as a matter of law as to the
offense alleged in the indictment. Second, the jury was required to believe that her
testimony was true. See Doyle, 133 S.W.2d at 973. Next, the jury was instructed that it
had to believe that her testimony demonstrated guilt on the part of appellant. It was
next instructed that it could not convict appellant unless Gamez’s testimony was
corroborated by other evidence tending to connect appellant to the offense charged.
Additionally, the jury was told that corroboration is not sufficient if it merely shows that
an offense had been committed; rather, that evidence must tend to connect appellant to
3
The Holladay court advised that the materiality element was probably no longer required.
13
the commission of that offense. Finally, the jury was instructed that it had to believe
beyond a reasonable doubt that appellant was guilty of the offense charged against him.
When broken down into its respective clauses, it is apparent to this Court that the
charge given applied the law of accomplice witness to the facts of this case. See
Holladay, 709 S.W.2d at 198; Doyle, 133 S.W.2d at 973. Accordingly, we find no error
in the trial court’s charge. Because we find no error in the trial court’s charge, we
overrule appellant’s second issue.
Conclusion
Having overruled appellant’s issues, we affirm the trial court’s judgment.
Mackey K. Hancock
Justice
Do not publish.
14