Alan Fraire v. the State of Texas ( 2021 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ALAN FRAIRE, § No. 08-19-00275-CR
Appellant, § Appeal from the
v. § 171st Judicial District Court
THE STATE OF TEXAS, § of El Paso County, Texas
Appellee. § (TC# 20170D05623)
OPINION
A jury convicted Appellant, Alan Fraire, of capital murder of multiple persons.
TEX.PENAL CODE ANN. § 19.03(a)(7). He raises two issues in this appeal: (1) the legal sufficiency
of the evidence to support his conviction, and (2) claimed error in the admission of expert
testimony. We find no merit in either contention and affirm the conviction.
I. FACTUAL BACKGROUND
Sometime between 7 and 8 p.m. on December 7, 2015, two neighboring pecan farmers in
a rural area of Fabens heard multiple gunshots. That same evening, local firefighters were called
to a reported “brush fire” at San Felipe Park. Upon their arrival, the firefighters instead
encountered a vehicle engulfed in flames. The firefighters and responding El Paso County
Sheriff’s deputies noticed what appeared to be a body in the back of the vehicle. The firefighters
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were careful to preserve the footprints they had previously seen around the vehicle. After the fire
was extinguished, burnt human remains were recovered and later identified as Maria Cuellar
(“Maria”). An autopsy report revealed Maria had suffered a fatal bullet wound to the torso before
being set on fire. The sheriff’s investigators determined the vehicle was registered to Vicente
Cuellar who was Maria’s husband.
Two days later--on the morning of December 9th--one of the farmers who had heard the
gunshots on the evening of the murders, drove along a canal bank alongside his pecan orchard and
saw a parked truck. As he approached, he saw a pool of blood on the canal bank and a body later
confirmed to be David Miranda (“David”). An autopsy confirmed that David died from multiple
gunshots throughout his torso and head.
Detectives soon learned that Maria and David, who were co-workers, were having an affair.
A. The Investigation and Evidence
A total of thirteen .223 caliber shell casings were found at the scene where David’s body
was discovered; a .223 caliber shell casing was also found in the desert where Maria’s body was
discovered. Ballistics analysis confirmed all fourteen shell casings were fired from the same rifle.
Two sets of shoe impressions were discovered at the scenes--one described as a loafer type of shoe,
and the other as an athletic shoe. Both shoe impressions were present at both crime scenes, and
did not match the shoes David died in.
The morning after the discovery of Maria’s body, Detective Jorge Andrade obtained a
search warrant for Vicente Cuellar’s (“Cuellar”) residence. During this search, authorities
confiscated Cuellar’s cell phone and truck. Cuellar’s truck was particularly clean, and the call log
of his phone later revealed that all the cellular activity for December 7th--the day of the murders-
-had been deleted. A Walgreens receipt found in Cuellar’s truck reflected the purchase of
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hydrogen peroxide on the evening of the murders. Video surveillance from the store confirmed
this, and showed Appellant and Cuellar together inside the Walgreens--Cuellar made the purchase
while Appellant stood right next to him.
B. Appellant’s Two Statements
On December 9th, Detective Andrade interviewed Appellant. The interview was admitted
into evidence at trial both through a transcript and video that was played for the jury. During the
first interview, Appellant denied having any knowledge of what happened to Maria. He claimed
that on December 7th, he spent the day working on a car at a lady’s house.1 Cuellar came to his
house at approximately 5 or 6 p.m. that day and the two worked on one of Cuellar’s vehicles for a
couple of hours. Cuellar and Appellant then went to Cuellar’s house around 7 or 8 p.m. and by
that time, Maria was not yet home from work. Appellant then dropped off Cuellar (who is an
over-the-road truck driver) at Cuellar’s semi-truck. Appellant then went home in Cuellar’s GMC
truck. He ran an errand with his wife and returned to his house at 8:30 or 9 p.m. where he stayed
the rest of the evening. He claimed that he knew nothing about Maria having an affair, and
claimed that Cuellar was incapable of hurting her.2 Almost all of these claims contradict what he
later revealed nine months later when he was interviewed a second time.
On August 30, 2016, sheriff’s detectives interviewed Appellant a second time. This
interview was also admitted into evidence and played for the jury at trial. In the second interview,
Appellant initially denied any involvement in the murders and claimed he spent the day working
on a woman’s vehicle in the upper East side of El Paso, Texas until about 7 or 8 p.m. He then
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Sheriff’s investigators confirmed this part of Appellant’s claim.
2
Appellant did relate that Cuellar claimed to have received some threats from persons associated with a Juarez,
Mexico, cartel.
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went straight home afterwards where Cuellar was waiting so the two could work on his truck.
Detective Andrade then informed Appellant that his cell phone records and locations on the day
of the murders did not align with his alibi. Detective Andrade explained that his cell phone
records pinned his location in the Fabens area at the time of the murders, consistent with the
locations of both murder scenes.3 When asked, “Just tell us how you ended up being at those two
locations with [Cuellar,]” Appellant hesitated for a while and responded, “You promise me you’ll
keep my family safe no matter what?” Appellant then began to unravel a sequence of facts that
slowly revealed his involvement in the murders.
Appellant confessed that after Cuellar found out about the affair between Maria and David,
Appellant agreed to surveil Maria in exchange for money.4 On the day of the murders, he and
Cuellar followed Maria to photograph her. Appellant claimed he and Cuellar spotted Maria and
David at a local Burger King on the day of the murders. But rather than follow them when they
left, he claimed they instead proceeded to order food and eventually traveled some distance to
Fabens, Texas to the remote canal site where Maria and David were located.
Upon their arrival to the canal, Appellant claimed Cuellar saw Maria and David together,
got out of the truck, and “just went crazy.” Detective Andrade asked:
Q. Right, right. So he just went crazy and did what?
A. He shot them.
Q. With what?
A. With an AR-15.
3
At trial, the records custodian for T-Mobile and an FBI agent testified to cell phone tower data which linked
Appellant’s phone to the areas of the crime scenes on the day of the murders.
4
He also admitted to surveilling Maria with Cuellar about two to three times--once at the canal site, and once from
across the street of where Maria worked.
4
However, Appellant denied seeing Cuellar pull out an AR-15 before getting out of the
truck, and claimed he did not see the actual shootings and could not remember specifics because
he was looking down at his phone on Facebook. He explained it was not until he heard gunshots
that he looked up. After hearing the gunshots, he alleged he got out of the truck and saw the rifle
for the first time. At this point, Appellant claimed he got back inside the truck and “took off,”
leaving Cuellar at the murder scene. Appellant said he intended going home, but while en route,
Cuellar called him and asked to be picked up in the Fabens area, and also asked Appellant to bring
gasoline.
Appellant agreed to Cuellar’s requests, and said he purchased a gallon of gasoline and
picked Cuellar up on San Felipe Road--the area where Maria’s burnt remains were found. At
first, Appellant said he gave Cuellar the gasoline when he picked him up, then Appellant changed
his story and alleged Cuellar never took the gasoline. Appellant denied ever going to San Felipe
Park and could not explain the two sets of shoe impressions at the murder scenes.
In the second statement, Cuellar was described as being unfamiliar with rifles whereas
Appellant admitted to previously owning an AR type rifle and confidently confirmed knowing
how to use an AR type rifle. Appellant also revealed that before the murders, Cuellar told him he
wanted to purchase a rifle and asked if Appellant knew where and from whom he could get one.
C. Trial Proceedings
Appellant was indicted for one count of capital murder of multiple persons and two counts
of tampering with or fabricating physical evidence (a human corpse in Count II and an item in
Count III). TEX.PENAL CODE ANN. §§ 19.03(a)(7), 37.09(c). At trial, the State advanced the
theory that Appellant and Cuellar acted together in the commission of the murders of Maria and
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David.5 The State presented its case through the investigating sheriff’s officers who documented
the physical evidence we note above, and Appellant’s interviews. The State called the two
neighbors who heard the gunshots on the evening of the murders, a forensic scientist, and the
medical examiner who examined both corpses. The State also presented testimony through the
records custodian for T-Mobile and an FBI agent who collectively, from cell tower data, linked
Appellant’s phone to the areas of the crime scenes on the day of the murders. The jury also heard
testimony about the affair leading up to Maria and David’s murders, and Appellant’s involvement
in surveilling them.
The murder weapon was never recovered. Nor did the State find any shoes in Appellant
or Cuellar’s possession that matched those at the scene. Appellant offered no witnesses to testify
on his behalf.
The jury returned a unanimous guilty verdict on all three counts and imposed an automatic
life sentence in the Texas Department of Criminal Justice Institutional Division in Count I, and
five years in Counts II and III, all to run concurrently. This appeal followed.6
II. SUFFICIENCY OF THE EVIDENCE
Appellant raises two issues on appeal, the first claiming that the evidence is legally
insufficient to support the capital murder conviction.
A. Standard of Review
The Fourteenth Amendment’s guarantee of due process requires that every conviction must
be supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315-16
5
Vicente Cuellar was tried separately and convicted of capital murder. His conviction was recently affirmed by this
Court. Cuellar v. State, No. 08-18-00133-CR, 2021 WL 2184512 (Tex.App.--El Paso May 28, 2021, no pet. h.) (not
designated for publication).
6
On appeal, Appellant challenges only his conviction of capital murder of multiple persons.
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(1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010). In a legal sufficiency
challenge, we focus solely on whether the evidence, when viewed in the light most favorable to
the verdict, would permit any rational jury to find the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 318-19; Brooks, 323 S.W.3d at 912 (establishing legal
insufficiency under Jackson v. Virginia as the only standard for review of the evidence).
Circumstantial evidence is considered as probative as direct evidence in establishing guilt,
and circumstantial evidence alone can establish guilt of an actor. See Hooper v. State, 214 S.W.3d
9, 13 (Tex.Crim.App. 2007). A court assesses a sufficiency challenge by comparing the evidence
presented at trial to the elements of the offense as “defined by the hypothetically correct jury charge
for the case.” See Ramjattansingh v. State, 548 S.W.3d 540, 546 (Tex.Crim.App. 2018), quoting
Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997) (en banc).
Applying that standard, we recognize that our system designates the jury as the sole arbiter
of the credibility and the weight attached to the testimony of each witness. Metcalf v. State, 597
S.W.3d 847, 855 (Tex.Crim.App. 2020); Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App.
2014). Only the jury acts “to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.” Clayton v. State, 235 S.W.3d 772,
778 (Tex.Crim.App. 2007), quoting Jackson, 443 U.S. at 319. An inference must be reasonable
and supported by the evidence at trial; it cannot be solely based on speculation. Hooper, 214
S.W.3d at 16. The Court of Criminal Appeals has distinguished speculation as “mere theorizing
or guessing about the possible meaning of facts and evidence presented[,]” whereas a reasonable
inference is a conclusion supported by the evidence at trial and reached by “considering other facts
and deducing a logical consequence from them.” Id. In drawing reasonable inferences, the jury
remains at liberty to believe “all, some, or none of a witness’s testimony.” Metcalf, 597 S.W.3d
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at 855. When the record supports conflicting inferences, we presume that the jury resolved the
conflicts in favor of the verdict, and we defer to that determination. Dobbs, 434 S.W.3d at 170;
see also Jackson, 443 U.S. at 319.
B. The States’s Burden
Appellant was charged with capital murder of multiple persons. TEX.PENAL CODE ANN.
§ 19.03(a)(7). A person commits the offense of murder if he “intentionally or knowingly causes
the death of an individual.” TEX.PENAL CODE ANN. § 19.02(b)(1). A person commits capital
murder if he murders more than one person during either the same criminal transaction, or during
different criminal transactions, but the murders are committed pursuant to the same scheme or
course of conduct. Id. § 19.03(a)(7). Additionally, in the instant case, the trial court instructed
the jury on the law of parties and authorized the jury to convict Appellant either as the primary
actor or as a party. See TEX.PENAL CODE ANN. § 7.02(a)(2) (a person is criminally responsible
for an offense committed by another if in acting with intent to promote or assist the commission
of the offense, he solicited, encouraged, directed, aided, or attempted to aid the other person to
commit the offense). To prove the intent to promote or assist element, the State must show it was
Appellant’s conscious objective or desire for the primary actor to commit the crime. Metcalf, 597
S.W.3d at 856.
Thus, a hypothetically correct jury charge would ask whether Appellant: (1) intentionally
or knowingly caused the deaths of Maria and David, (2) in the same scheme or course of conduct
during either the same transaction or different criminal transactions, and (3) possessed a conscious
objective or desire for the primary actor to commit the crime. See TEX.PENAL CODE ANN.
§§ 19.02(b)(1), 19.03(a)(7); Metcalf, 597 S.W.3d at 856.
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C. Application
In this case, Appellant challenges the sufficiency of the evidence based on the lack of
evidence to prove he either murdered or aided Cuellar in the murders of Maria and David.
Specifically, Appellant maintains: “This case presents a perfect example of the disaster which
occurs when juries do not grasp the distinction between drawing reasonable inferences and
speculation.” Based on the circumstantial evidence presented by the State, we disagree.
Circumstantial evidence alone may be sufficient to support a conviction. See Guevara v.
State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004) (“. . . the lack of direct evidence is not dispositive
of the issue of the defendant’s guilt. . . . Circumstantial evidence alone is sufficient to establish
guilt.”). A reviewing court must analyze whether the cumulative force of the evidence could
support the jury’s conviction beyond a reasonable doubt. See Clayton, 235 S.W.3d at 778. In
this case, the State admitted both of Appellant’s recorded interviews that we believe, juxtaposed
with the other evidence in the case, established his guilt at trial.
Appellant claims there was “no evidence whatsoever” he committed the murders, and that
the jury based its guilty verdict solely on evidence of him being present at the crime scenes,
purchasing gas for Cuellar, and lying or not being forthcoming enough to the authorities, which
Appellant claims is merely speculative and thus, insufficient. But these are circumstances, along
with others, that would permit a rationale jury to infer Appellant’s guilt. And importantly,
Appellant’s own statement establishes that Cuellar shot and killed both Maria and David when
Appellant was present at the scene. The circumstantial evidence is only needed to answer the
corollary question of whether Appellant was a participant in those murders, or an accidental
bystander.
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Answering that question, the State showed that Appellant and Cuellar were close friends,
and Appellant actively assisted Cuellar with his divorce proceedings. While Appellant first
denied that he knew anything about the affair the victims were having, the State presented other
evidence corroborating that Appellant assisted in surveilling Maria and David for some time
leading up to the murders, (including Appellant’s later admission of that fact and testimony that a
tracking device may have been installed on Maria’s vehicle). Some testimony showed that
Appellant was being paid to obtain pictures documenting Maria’s infidelity. Testimony also
established that Appellant had discussed the affair with a friend of Cuellar and mentioned David
by name, which revealed that he too, knew the identity of the man Maria was seeing.
Additionally, Appellant was familiar with guns, specifically, AR-style rifles of the type
used in this case; whereas Cuellar was not. Appellant encouraged Cuellar to get a gun, and
Cuellar asked for Appellant’s help in acquiring a rifle shortly before the murders. Appellant
initially fabricated an alibi (claiming he was in the area of his home with his wife at the time of
the murders), which was refuted by cell-phone records placing him in proximity of the canal and
burned-van crime scenes at the time of the murders.7 Appellant could also not explain how he
came to be present at the scene (that is, whether they followed Maria and David or whether Cuellar
knew they would be at the canal). Additionally, the physical evidence showed that David’s body
had been thrown from the road onto the canal bank, not dragged (thereby suggesting that two
individuals had done that).8 While Appellant claimed that he panicked when he saw Cuellar with
7
The jury heard testimony from Sean Macmanus, an FBI agent who is trained to analyze cell phone tower data
records. Agent Macmanus testified those records confirmed that Appellant’s cell phone was located in the areas of
the murder scenes on the day of the murders.
8
El Paso County Sherriff Bernadette Ortega testified that David’s body was moved from where he was shot, but was
picked up and tossed, not dragged. Because David’s body was not dragged, we agree with the investigators and
deduce two persons carried his corpse.
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the gun after the shootings at the canal and fled in a panic in Cuellar’s truck because he was afraid
Cuellar was going to shoot him, there were two crime scenes, both with two sets of shoe prints,
and both with shell casings.9 Appellant’s story is further strained by his admission that he later
returned, at Cuellar’s request, with a gasoline can, but only picked-up Cuellar and took him home.
Appellant never reported the murders to the police, despite ample opportunity to do so, and instead
attempted to initially divert the authorities with the false claim that neither he nor Cuellar had any
involvement. Video footage taken outside of a Walgreens on the evening of the murders also
showed that Appellant and Cuellar were seen together buying hydrogen peroxide.
Appellant’s intent to commit, promote, or assist in the murders was demonstrated through
the testimony and evidence presented at trial--namely: (1) his involvement in surveilling Maria,
(2) the two sets of shoe prints and two locations of shell casings when Appellant’s story would
support only one, (3) the unlikelihood of not noticing Cuellar pulling an AR-15 out of the truck
the two were occupying right before the shootings occurred, (4) testimony that one body was
carried and not dragged, suggesting two persons moved the corpse, and (5) purchasing gasoline
for Cuellar and picking him up in the area of the murder scenes. As the ultimate trier of fact, the
jury was free to judge the weight and credibility of the evidence and we defer to that resolution.
Dobbs, 434 S.W.3d at 170. Our only task is to determine whether a rational juror could have
found the essential elements of the crime beyond a reasonable doubt. Isassi v. State, 330 S.W.3d
633, 638 (Tex.Crim.App. 2010). Based on the evidence, the testimony, and the reasonable
inferences drawn from the totality of the circumstances, we deduce a rational jury could have
9
A total of thirteen .223 caliber shell casings were found where David’s body was discovered, and a same .223 caliber
shell casing was also found in the desert where Maria’s body was discovered. Ballistics analysis confirmed all
fourteen shell casings were fired from the same rifle. In addition, there were two sets of shoe impressions found at
both murder scenes and there was testimony regarding their distinctive characteristics.
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concluded--not merely speculated--Appellant either intentionally or knowingly caused the deaths
of Maria and David, or at minimum, possessed the conscious objective to assist Cuellar in
committing the murders. TEX.PENAL CODE ANN. §§ 19.02(b)(1), 19.03(a)(7), 7.02(a)(2); Metcalf,
597 S.W.3d at 856. The evidence is legally sufficient to support Appellant’s conviction. Issue
One is overruled.
III. EXPERT QUALIFICATION
In his second issue, Appellant asserts the trial court erred in qualifying Kiersten LaPorte as
an expert in shoe-impression analysis. LaPorte is a forensic scientist in trace evidence analysis
with the Texas Department of Public Safety’s crime laboratory. At the time of this trial, she had
testified one time before on shoe-impression analysis, but had reviewed fourteen shoe impressions
in other cases. LaPorte testified that some of the shoe impressions taken from the crime scene
may have been made by a Skechers brand athletic shoe, but she was provided no shoes for
comparison. She was shown photographs from the scene, but herself did not testify that there
were two sets of prints at the scenes. 10 On appeal, Appellant argues that her testimony was
irrelevant, particularly given that no “Skechers” brand type shoe was collected from either Cuellar
or Appellant.
A. Standard of Review and Controlling Law
A reviewing court evaluates a trial court’s admissibility decision under an abuse of
discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001). A trial court
abuses its discretion when it acts without reference to any guiding rules and principles or acts
10
The Sheriff’s Department crime-scene investigator, Susan Pedregon, testified that there were two different sets of
footprints at the burned-out vehicle. Another crime scene investigator, Bernadette Ortega, likewise testified to the
same two sets of prints at both the burned-out vehicle and canal scenes. Neither set matched the shoes that David
had on at the time of the murder.
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arbitrarily or unreasonably. Rhomer v. State, 569 S.W.3d 664, 669 (Tex.Crim.App. 2019).
Because trial courts are in the best position to make calls on questions of admissibility, we will
uphold a trial court’s decision if it falls within the zone of reasonable disagreement, and we afford
great deference to a trial court’s evidentiary decision. Martinez v. State, No. 08-17-00165-CR,
2019 WL 4127261, at *7 (Tex.App.--El Paso Aug. 30, 2019, no pet.) (not designated for
publication).
Expert testimony may be properly admitted if: (1) the witness qualifies as an expert by
reason of knowledge, skill, experience, training, or education; (2) the subject matter of the
testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will
actually assist the fact finder in deciding the case. Vela v. State, 209 S.W.3d 128, 131
(Tex.Crim.App. 2006). A two-step inquiry governs the analysis: “A witness must first have a
sufficient background in a particular field, but a trial judge must then determine whether that
background ‘goes to the very matter on which [the witness] is to give an opinion.’” Id. at 131.
A trial court’s determination of whether a witness possesses qualifications to assist the jury as an
expert is afforded great deference. Id. at 136. Accordingly, when a trial court qualifies a witness
as an expert, that determination is rarely disturbed by reviewing courts. Id.B. Preservation
Before addressing the merits, the State points out that Appellant is actually complaining
about the relevance of the expert’s opinion, while the only objection at trial was directed to the
expert’s qualification. Accordingly, no relevance objection as to Ms. LaPorte’s testimony at trial
has been preserved for appellate review. We agree.
As a threshold matter, preservation of error by a specific and timely objection at trial must
be made to raise the issue on appeal. See Moore v. State, 371 S.W.3d 221, 225 (Tex.Crim.App.
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2012) (an appellate issue that is not preserved at trial is ordinarily forfeited). At trial, after
establishing Ms. LaPorte’s qualifications, the prosecutor offered her as an expert to testify as to
the shoe impressions found at the murder scenes. Defense counsel objected, and when the court
asked for the legal basis of the objection, defense counsel requested a voir dire examination. After
voir dire, defense counsel stated, “I’m going to renew my objection . . . I don’t think they’ve . . .
established that she has the requisite expertise in this particular subdiscipline and at this juncture
in her career.” The court overruled the objection and admitted Ms. LaPorte as an expert in
forensic trace evidence analysis. Defense counsel objected yet again, reiterating Ms. LaPorte’s
lack of expertise in the field, and the court returned to voir dire examination of the witness. After
further establishing Ms. LaPorte’s expertise, she was again offered as an expert. The court asked
defense counsel if she renewed the objection to which defense counsel responded: “Yes, Your
Honor.” The objection was overruled, and Ms. LaPorte was admitted as an expert.
At trial, Appellant objected to Ms. LaPorte’s lack of expertise--the first Vela factor. See
Vela, 209 S.W.3d at 131 (the witness qualifies as an expert by reason of his knowledge, skill,
experience, training, or education). Now on appeal, Appellant specifically asserts: “In this case
it is precisely relevance which is at issue. Laporte’s testimony was simply not relevant in this
case[]”--the third Vela factor. See id. (admitting the expert testimony will actually assist the fact
finder in deciding the case). Thus, we find Appellant failed to preserve this issue for appellate
review.
In any case, our review of Ms. LaPorte’s testimony establishes that she offered no more
than what Sherriff Ortega had already testified to regarding the shoe impressions found at both
murder scenes. Furthermore, because Appellant placed himself at the murder scenes in his
recorded interview, which was played for the jury, we find no resulting harm in the trial court’s
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qualification of Ms. LaPorte as an expert. Accordingly, we will not disturb the trial court’s
determination. Issue Two is overruled.
For these reasons, we affirm the conviction.
JEFF ALLEY, Justice
June 17, 2021
Before Rodriguez, C.J., Palafox, and Alley, JJ.
(Do Not Publish)
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