In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-16-00347-CR
No. 07-16-00348-CR
No. 07-16-00349-CR
BERNARDO LUIS AVILA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 287th District Court
Bailey County, Texas
Trial Court No. 2928, Honorable Gordon Houston Green, Presiding
August 1, 2017
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Bernardo Luis Avila (appellant) appeals his three convictions for solicitation to
commit capital murder. The sole issue before us involves the sufficiency of the
evidence to establish that he intended that the three potential victims be killed.
Allegedly, the evidence simply illustrated that he wanted their tongues removed. We
affirm.
Law
The applicable standard of review is that most recently described in Villa v. State,
514 S.W.3d 227 (Tex. Crim. App. 2017). There, our Court of Criminal Appeals
reiterated it as follows:
The standard of review for determining the legal sufficiency of the
evidence to support a conviction is whether, after viewing all of 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. This standard requires the appellate court to defer “to
the responsibility of the trier of fact to fairly resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” The court conducting a sufficiency review
must not engage in a “divide and conquer” strategy but must consider the
cumulative force of all the evidence. Deference to the trier of fact extends
to the inferences drawn from the evidence as long as the inferences are
reasonable ones supported by the evidence and are not mere speculation.
Id. at 232.
Next, a person commits an offense if, with intent that a capital felony or felony of
the first degree be committed, he requests, commands, or attempts to induce another to
engage in specific conduct that, under the circumstances surrounding his conduct as
the actor believes them to be, would constitute the felony or make the other a party to
its commission. See TEX. PENAL CODE ANN. § 15.03(a) (West 2011). The capital felony
involved at bar was capital murder. The type of capital murder at issue was that
encompassed in § 19.03(a)(3) of the Penal Code, that is, the solicitation to commit
murder by employing another to commit it for remuneration or the promise of
remuneration. See id. § 19.03(a)(3) (West Supp. 2016).
Furthermore, and to the extent the person solicited to commit the crime testifies
at trial, the Texas Penal Code specifically requires his testimony to be corroborated.
That is, it states that a “person may not be convicted . . . on the uncorroborated
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testimony of the person allegedly solicited and unless the solicitation is made under
circumstances strongly corroborative of both the solicitation itself and the actor’s intent
that the other person act on the solicitation.” See id. § 15.03(b).
Application of the Law
As previously mentioned, appellant attacked only the element of murder. He
argued that the State did nothing more than prove he sought the removal of the tongues
of his intended victims. We disagree.
According to the evidence of record, appellant was incarcerated in a local county
jail pending trial on unrelated charges. His three prospective victims purportedly were
witnesses to that offense. He indicated to others that without them the prosecution
would most likely falter. So, according to his cellmate, appellant asked him (the
cellmate) to help find someone to “kill” the potential witnesses.1 Instead of doing that,
the cellmate contacted the district attorney of another county. The latter then contacted
the Texas Rangers. And, the Texas Rangers selected one of their own to pose as a hit-
man, which “hit-man” then contacted appellant in jail.
Appellant and the designated “hit-man” spoke of “some yards [having] . . . trash
on them” and appellant wanting them “cleaned.” The cost for the “yard-work” was
$10,000 per yard, and the work was to be completed within two months or before
appellant’s approaching trial date. Apparently, discussions were had between the two
about the method of performing the work, and it was during those discussions that
appellant told the “hit-man” that he (appellant) wanted a knife to be used and wanted
the victims’ tongues removed. Appellant, though, never used the word “kill” when
1
Appellant did not argue that the cellmate was an accomplice or that his testimony had to have
been corroborated as well.
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talking to the “hit-man.” Rather, in their recorded jailhouse conversations, only the “hit-
man” used that term, such as when the “hit-man” attempted to afford appellant
opportunity to change his mind. In doing so, the person said: “Like I told you, it’s going
to happen. I’m going to kill the three.” (Emphasis added).
That appellant wanted to silence three potential witnesses to any earlier crime,
that he sought help from his cellmate to find someone to “kill” those witnesses, that he
was willing to pay $10,000 per person, and that he needed the work completed before
his trial began is more than ample evidence from which a rational trier of fact could
conclude beyond a reasonable doubt that appellant intended for the “hit-man” to
intentionally cause the death of (or kill) the prospective witnesses. It may well be that
appellant never used the word “kill” when conversing with the “hit-man,” but he did use it
when asking his cellmate to find someone to perform the task, as testified to by the
cellmate. So, the “hit-man’s” testimony about being hired to kill the people was
“strongly” corroborated as required by § 15.03(b) of the Penal Code.
We overrule appellant’s sole issue and affirm the three judgments.
Per Curiam
Do not publish.
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