Nathan Fernandez v. State ( 1999 )

Nos. 04-98-00691-CR & 04-98-00692-CR Nathan FERNANDEZ, Appellant v. The STATE of Texas, Appellee From the 81st District Court, Atascosa County, Texas Trial Court Nos. 98-01-0014-CRA & 98-01-0015-CRA Honorable Stella Saxon, Judge Presiding

Opinion by: Alma L. López, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Alma L. López, Justice

Delivered and Filed: November 10, 1999

AFFIRMED

In appeal No. 04-98-000691-CR, Nathan Fernandez challenges his conviction for murder in Cause No. 98-01-0014-CRA. In appeal No. 04-98-000692-CR, Fernandez challenges his conviction for aggravated assault in Cause No. 98-01-0015-CRA. Both offenses were tried in a single proceeding before a jury. Fernandez raises the same issues in both appeals.

Accomplice Testimony

In his first issue, Fernandez contends that the State's evidence was insufficient to support his convictions because it was based on uncorroborated testimony of the State's accomplice witness, Reynaldo Cuellar, Jr. Like Fernandez, Cuellar was charged as a defendant in these offenses. Cuellar, however, agreed to testify against Fernandez and to plead guilty to the offense of aggravated assault in exchange for the State's agreement to dismiss his murder charge.

At trial, Cuellar testified about a shooting incident that occurred at the home of J.D. Gonzales and that resulted in the death of one victim and the wounding of another person. During his testimony, Cuellar described a verbal altercation between himself and Gabriel Garcia, and J.D. Gonzales and John Shawn Martin, that escalated to the point that J.D. and Martin drove by Garcia's home and fired a shot towards the house. Fernandez's younger brother, Rudy, was among those who were present when this occurred. Cuellar further explained how shortly after this incident, he met up with Fernandez, Gabriel, and Gabriel's younger brother, Eric. He described how the four of them were angry about the shooting at J.D.'s house and how they drove to a location near J.D.'s house with the intention of fighting with J.D. As they approached J.D.'s house, however, they determined that too many people were at J.D.'s house to initiate a fight. Cuellar testified that when they returned to his truck to depart the area, Fernandez stated that no one was going to shoot at his brother and get away with it. Fernandez then asked him for his (Cuellar's) gun and that he gave Fernandez the gun. Cuellar stated that he then followed Fernandez back to J.D.'s house and observed him aim the gun, hearing gun shots almost simultaneously. Both he and Fernandez ran back to the truck and took off for his (Cuellar's) house. Cuellar testified that during the ride home, Fernandez twice stated that he had shot the gun and that nobody was going to mess with his family.

Fernandez argues that without Cuellar's testimony, the State's evidence did not connect him to the offenses. Fernandez relies on the accomplice witness rule embodied in article 38.14 of the Texas Code of Criminal Procedure. Article 38.14 provides:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). To review this challenge, the reviewing court must eliminate the accomplice testimony from consideration and then determine whether other inculpatory evidence tends to connect the defendant to the offenses. See Richardson v. State, 879 S.W.2d 874, 880 (Tex. Crim. App. 1993). The court may consider all the facts and circumstances in evidence as furnishing the corroboration necessary. Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988). The corroborative evidence may be circumstantial or direct. Reed, 744 S.W.2d at 126. The corroboration need not directly link the accused to the crime or be sufficient in itself to establish guilt. Id.

After reviewing the record, we find that the following corroborating testimony tended to connect Fernandez to the shooting incident. First, Gabriel testified that he overheard Fernandez ask Cuellar for his gun. He also testified that Fernandez was mad because they [J.D. and Martin] had shot at his little brother. Gabriel further testified that, prior to the shooting, he heard Fernandez state that no one was going to mess with his family, and that after the shots were fired, Fernandez stated, "That's what they get. They don't f--- with my family."

In addition, Eric Garcia testified about the incident during which J.D. fired a shot at Gabriel's house. Eric confirmed that Fernandez's little brother was present when the incident occurred and that Fernandez was angry because his younger brother was present. He also stated that although he had left the area before the second shooting incident, Fernandez told him two days later that he was present during the shooting and that he had provided the police with a written statement saying that Fernandez admitted to him that he did the shooting.

State's witness, Melissa Cruz, provided additional inculpatory, corroborating evidence. Cruz testified that she was outside her home when she heard shots being fired. Immediately afterwards, she observed two men run down the alleyway from the direction of J.D.'s house. She identified the two men as Fernandez and Cuellar. In addition, Martin testified that both Cuellar and Fernandez wanted to fight J.D. He testified that he overheard Fernandez state, "I would do it," and that he (Martin) understood Fernandez to mean that he would shoot J.D. He also testified that a couple of weeks after the shooting incident, Fernandez admitted to him that he had done the shooting and that he was having trouble sleeping as a result. Because all of the above testimony corroborated Cuellar's testimony about what occurred and tended to connect Fernandez to the offenses, we overrule Fernandez's fist issue.

Factual Sufficiency

In his second issue, Fernandez attacks the factual sufficiency of the evidence. To make this challenge, Fernandez relies on the inconsistencies between the testimonies of eye witnesses, and the testimonies of Fernandez and his mother about the clothing he was wearing on the night of the shooting, and the unreliability of the testimonies discussed above.

To review a factual sufficiency challenge, the reviewing court reviews all evidence without the prism of "in the light most favorable to the prosecution" and sets aside the verdict only if it is so contrary to the overwhelming weight of evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Although some inconsistencies exist in the testimonies of the numerous witnesses in this case, the over-whelming weight of the evidence indicates that Fernandez fired the gun that resulted in the death of one victim and the wounding of the other person. Because the evidence indicates that Fernandez fired the gun, we overrule Fernandez's second issue.

Having overruled both of Fernandez's issues, we affirm the judgment of the trial court.

Alma L. López, Justice

DO NOT PUBLISH