Jose Juan Sandoval v. State ( 2013 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
JOSE JUAN SANDOVAL, §
No. 08-11-00283-CR
Appellant, §
Appeal from the
v. §
346th District Court
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC# 20100D02656)
§
OPINION
Jose Juan Sandoval (“Sandoval” or “Appellant”) appeals his conviction on three counts of
criminal solicitation to commit capital murder, for which he was sentenced to thirty (30) years’
confinement. In a single issue, Sandoval challenges the legal sufficiency of the evidence to
support his conviction. Sandoval asserts the legal insufficiency is the result of the lack of
sufficient corroboration of the accomplice witnesses’ testimony under TEX.PENAL CODE ANN.
§ 15.03(b)(West 2011) and TEX.CODE CRIM.PROC.ANN. art. 38.14 (West 2005). For the reasons
set out below, we affirm as modified.
PROCEDURAL HISTORY
Sandoval was indicted on four counts of criminal solicitation to commit capital murder,
alleged to have occurred on or about April 4, 2010, and one count of retaliation, alleged to have
occurred on or about April 3, 2010. The retaliation count was dismissed by the State, and
Sandoval pled not guilty to the four remaining counts of criminal solicitation. Following a trial,
the jury found Sandoval guilty of Counts I-III and not guilty of Count IV. Sandoval timely
appealed.
BACKGROUND
Sandoval was convicted of solicitation of capital murder of Auralila Brenes (“Auralila”),
Francisca Garcia (Auralila’s mother), and Flavio Rosete (Auralila’s neighbor). Three accomplice
witnesses, Vicente Lopez (“Lopez”), Gabriel Martin (“Martin”), and Christian Renovato
(“Renovato”), testified against Sandoval. Lopez, Martin, and Renovato testified pursuant to a
plea agreement with the State. In exchange for their plea of guilty each to four counts of criminal
conspiracy to commit capital murder and one count of engaging in organized criminal activity,
they would each be sentenced to 10 years’ imprisonment.
Flavio Rosete (“Rosete”) lived next door to Auralila on Mike Godwin Street in El Paso,
Texas. Rosete had met Sandoval only once, as Auralila had introduced him to Sandoval at her
house (“the Mike Godwin house”). In January of 2010, Rosete heard shots being fired outside of
his house at about ten or eleven o’clock at night. Rosete looked outside through his window and
saw Sandoval outside of Auralila’s house. Rosete did not see Sandoval with a gun.
On Easter Sunday, April 4, 2010, Rosete, his wife, and Auralila’s mother and aunt, were
helping Auralila move and loading her furniture into a Budget moving truck. Rosete understood
Auralila was moving to New Mexico. Rosete agreed to drive the Budget truck for her.
Meanwhile, that same Sunday afternoon, Lopez, leader of the “Skunx” gang, went to the house of
Daniel Dalli (“Dalli”) to buy marijuana. Dalli asked Lopez if he “wanted to make some money.”
2
Dalli told Lopez all he “would have to do is go check on a girl . . . see what she was doing.”1 Dalli
told Lopez she lived just a few blocks away. Lopez agreed. Dalli then gave Lopez a phone
number to call, which Lopez understood belonged to Sandoval.2 Dalli lives on Willowmist which
is a few blocks from Mike Godwin.
Lopez called Sandoval for the first time at 5:24 p.m. and spoke to him for four minutes and
nine seconds. Sandoval offered Lopez $200 to “just go check” on Auralila. Sandoval asked
Lopez to see if “she was with anybody or what she was doing.” Dalli told Lopez to go to Mike
Godwin and there would be a Budget truck in front of the house where Auralila lived. Lopez was
driving a baby blue 1994 Buick Sentra.
Lopez drove down Mike Godwin and observed a group of people moving a safe into the
back of a truck. He stopped to ask a girl, fitting Sandoval’s description, “if she had work or
needed help with anything.” Auralila told Lopez no. Lopez called Sandoval back and told him
there is a male there and they were moving stuff out. Sandoval offered Lopez $500 to follow
Auralila and find out where she was moving to. Lopez agreed to do it.
Lopez saw Auralila get into a Land Cruiser and he followed it. The Land Cruiser was
following the Budget truck. After a block, Lopez lost the Land Cruiser and suspected she had
seen him. Lopez backtracked and was able to find the Budget truck. Lopez began following the
truck to northeast El Paso. According to Lopez, Rosete tried to hit Lopez’ car with the Budget
truck, so he left the area and reported to Sandoval he had been spotted. Lopez described the
1
Though Lopez did not know the identity of the “girl,” it was undisputed that the woman identified by him as “the
girl” is Auralila Brenes. Lopez testified he did not know the exact relationship between Auralila and Sandoval but
assumed she was Sandoval’s girlfriend.
2
During the relevant time period, Lopez’ cell phone number was 915-234-3889. The evidence is Sandoval was
using cell phone number 915-261-3109.
3
truck’s driver to Sandoval. Sandoval told Lopez the truck’s driver is Auralila’s neighbor3 and not
to worry about him. Sandoval instructed Lopez to go back to the Budget truck and “find out
where he is going.”
Lopez located the Budget truck parked a few blocks away from where he last seen it.
Lopez got out of his car with his knife but Rosete took off “before [he] even got close.” Lopez got
back into his car and began to follow the truck again.
As Rosete was driving the Budget truck, Auralila’s son saw they were being followed by a
blue car. Rosete parked the truck and went to “see who they were.” However, the blue car drove
away.4 Rosete proceeded on his way and the blue car began following them again. At one point,
Rosete stopped at a store to wait for Auralila. The blue car also stopped and Lopez got out.
Rosete saw Lopez come “directly to the truck on the passenger side,” so Rosete immediately
started the truck and left. Rosete called the police.
As Lopez was following the Budget truck, the Land Cruiser reappeared. Lopez believed
photos or video had been taken of him so he attempted to stop the Land Cruiser to “get the
camera.” He followed the Land Cruiser to a restaurant. The Budget truck tried to block the
street on which Lopez was driving. Lopez called Sandoval to tell him “everything that had
happened” and “[he] needed to get out of there” because “[t]hey had cameras.”
Sandoval got “really mad” and told Lopez “inside the safe that there was money, and that
there was coke inside of it” worth around $250,000. Sandoval told Lopez that he “can’t lose that
truck.” Sandoval ordered Lopez to follow them and “find out where they are going.” Lopez told
Sandoval he was running out of gas and needed money. Sandoval told him “[g]o back to Dalli’s,
3
It was undisputed the neighbor Sandoval was referring to was Rosete.
4
At trial, Rosete identified photographs of the car that followed him, which was identified as Lopez’ vehicle.
4
and he will give you the money.” Lopez then called several other Skunx gang members to help
him. Lopez arranged to meet Gabriel Martin, Christian Renovato, and Brandon Jordan at a local
Whataburger.
After meeting with Martin, Renovato, and Jordan, Lopez called Sandoval back at about
“6:00, 7:00 or maybe eight o’clock.” Sandoval, according to Lopez, offered to pay $10,000 to
kidnap Auralila and kill her mother by chopping off her head. Sandoval told Lopez “she was
cheating on him; that she was a big old slut” and “he had just gotten her implants and that she was
still cheating on him.” Sandoval also said, “the mother [is] a witch; that she had put a hex on him”
and that was why “he wanted her head chopped off.” Sandoval also offered Lopez a $95,000
table, and anything left in the house after they picked Auralila up. Sandoval, according to Lopez,
explained “he wasn’t able to handle the situation; that he was in Chicago, and he wouldn’t be back
until Tuesday.” However, Sandoval specifically instructed Lopez, “not to do it in front of her
little girl.” Sandoval is adamant that “nobody [is] to touch her . . . not to hit her, not to sexual
assault her, nothing of that sort.” Sandoval told Lopez that he “wanted her nice and safe for when
he got back.” After kidnapping Auralila, Lopez was to prove to Sandoval they had her by calling
Sandoval with Auralila’s cell phone. Sandoval told Lopez after they kidnapped Auralila, “to put
her into a hotel until Tuesday to keep her safe.” Eventually, Sandoval offered Lopez $40,000 to
$50,000 to kidnap Auralila so Sandoval could kill her and Lopez was to kill Auralila’s mother.
Lopez told Sandoval he needed money for gas, supplies, and to pay for a hotel. Sandoval
sent Lopez to Dalli’s for $500 to use as “expense money.” Sandoval promised to pay the rest
later. Dalli gave Lopez $400 and a .32 caliber handgun with ammunition. 5 Lopez, Martin,
Renovato, and Jordan went to a Wal-Mart in northeast El Paso to get supplies. They bought
5
Lopez stated he only took $400, leaving the remaining $100 with Dalli for future expenses.
5
gloves, black shirts, bandanas, a baseball bat, and a machete. All four are recorded on the store’s
security cameras making these purchases at about eleven o’clock on April 4. Lopez testified the
machete was “for the mother” and the gloves to “keep our hands clean.” Lopez unequivocally
stated he was prepared to use the machete to chop off Auralila’s mother’s head. The prosecutor
asked Lopez why was he doing this and he replied “Money.”
Lopez, Martin, Renovato, and Jordan then began to search for the Budget truck but were
unsuccessful. Lopez called Sandoval, who instructed them to “go back to the house and see if
they have gone over there.” When they arrived at the Mike Godwin house, there were no lights on
and nobody was there. Lopez called Sandoval again, who told them “to break into the house.”
With Lopez and Martin acting as lookouts, Renovato and Jordan broke into the house through a
back door. They found the Land Cruiser in the garage. Lopez called Sandoval to report “they
had been there” but “we just lost them.” Sandoval became “really aggravated . . . annoyed . . .
[and] . . . mad,” speaking to Lopez completely in Spanish. Sandoval ordered them to check a
house on Mercury Street in northeast El Paso. Lopez and his friends went to that address, but did
not find anyone there. After Lopez informed Sandoval of their progress, Sandoval instructed
them to go back to the Mike Godwin house.
Back at the Mike Godwin house, sometime after two in the morning, they entered the house
again. The Land Cruiser was gone, but they found pictures of Auralila and her mother, which
they took along with a cell phone, a T.V., and a gaming device. According to Lopez, they took
the pictures in order to have a “description of her” and “know who she was.” Lopez saw the large
marble and gold table Sandoval had offered him. Martin testified Sandoval wanted them to look
in Auralila’s bedroom for men’s clothing.
6
Lopez and his friends went to another Wal-Mart to purchase additional supplies. The
store’s security cameras recorded them making these purchases on April 5 at 4:07 a.m. All four
returned to the Mike Godwin house and remained there until approximately 6 a.m. and then they
returned to their own individual residences. Lopez went to sleep around 8 or 9 that morning.
Sandoval had told Lopez, the night before, Rosete “would know where she was at” and “to
go break into the house to see what he would know.” Sandoval told Lopez, Rosete took his
daughter to school at 7 a.m. and returned home before going to work at about 8 a.m. at a maquila6
in Juarez. Sandoval directed Lopez to do “whatever needs to be done” in order to get him to talk
and tell them Auralila’s whereabouts. According to Lopez, he and Martin discussed what to do if
they “had to go in” after Rosete. Lopez stated, “we were talking about just breaking his fingers
and maybe cutting them off to get the information that we wanted if he didn’t want to tell us.”
Lopez said Martin told him “that since [Lopez] was going to take care of the mother, [Martin] will
take care of the neighbor.”
Lopez woke Martin up around 11 a.m. or noon. They went back to Mike Godwin, and
found “nothing was going on.” They decided to keep “cruising around,” to look for the Budget
truck and visit with Dalli. Later, they met Renovato and Jordan at the Mike Godwin house.
Lopez stated he and Martin went “to the neighbor’s house to see if he was home.” Lopez
explained, “we went and we knocked. And nobody came to the door. We could tell because the
door had a glass window on it.” No one answered the door. Lopez and Martin stood at the door
“waiting for something to happen.”
Martin testified Sandoval instructed them to contact Rosete by knocking on his door and
6
A maquiladora (“maquila”) is a factory run by a U.S. company in Mexico . . . . WEBSTER’S NEW UNIVERSAL
UNABRIDGED DICTIONARY 1173 (2001).
7
take him hostage. If Rosete’s daughter was also there, they were to take her hostage as well.
Martin testified he and Lopez did as Sandoval instructed and knocked on Rosete’s front door. No
one answered, so they left.
On the morning of April 5, Rosete saw the same blue car driving by “the front of my
house.” After Rosete saw the blue car, he did not want to go inside his house. Later that
afternoon, he saw the blue car again on the street at his house. He observed two males approach
his house and knock on the door. Rosete states they were “the same guys from the blue car.”
Rosete did not answer the door because his wife was scared and his two young daughters were at
home. Afterwards, Rosete left his home to go buy a handgun because he felt he needed to protect
his family. When he returned home with his newly purchased gun, there were numerous police
officers at Auralila’s house. Rosete never saw the men or the blue car again. At that time,
Rosete testified he was working at a maquiladora.
Martin testified that they decided to call Sandoval and tell him they had taken a cell phone
from the Mike Godwin house. The names and numbers on the cell phone were given to Sandoval
by Renovato. Renovato testified that Sandoval, whom he only knew as “Jose” from the prior
evening,7 was “just crazy.” Renovato stated Sandoval swore extensively when he was told the
names listed in the cell phone and learned his name was not included. Sandoval became “extra
mad” when he heard the name “Raul.” According to Lopez, Sandoval said “Raul” was one of the
men Auralila “was messing around with.”
Jordan and Lopez went back to Northeast El Paso, while Martin and Renovato stayed and
watched the Mike Godwin house. At around 8 p.m., Lopez told Martin and Renovato to break
7
Renovato testified that Lopez was on the phone all night with a guy named “Jose,” who was the man who kept telling
Lopez what he wanted done, how he wanted it done, and when he wanted it done.
8
into the Mike Godwin house again. Lopez told them to search the house for items like an ID or
passport, so Auralila would not be able to leave the country. Martin and Renovato entered the
house and began searching. Renovato testified that as they searched, he was carrying the bat
while Martin had the machete.
On April 5, at about 7:45 p.m., El Paso Police Officer Shawn Richardson was dispatched to
a house on Mike Godwin Street. After waiting for back-up, the officers proceeded towards the
house and “saw two subjects exiting the back of the house.” As the officers approached them
“they took off running.” The officers pursued both individuals. During the chase, each subject
discarded an item, both of which were later recovered. The recovered items were a baseball bat
and a machete.
Martin was arrested on April 5, near Edgemere and Mike Godwin, after he ran from the
home. Initially, Martin told police that “we were breaking into a house.” Martin testified
Sandoval wants “us to go back into the house to see if the girl has been in there and see if anything
has been moved.” Martin explained that he and Renovato went back into the house but a cop saw
them and they took off running. As they are running, Martin and Renovato “get rid of
everything.”
Renovato eluded the police. He called Lopez and told him Martin had been caught.
Lopez picked up Renovato and returned the gun to Dalli.
Lopez called Sandoval to tell him what happened. Lopez testified Sandoval knew “the
cops had already shown up.” Lopez spoke to Sandoval once or twice more. Lopez told
Sandoval, he “wasn’t going to be able to do it; that they had already caught one of my guys . . . .”
Sandoval was aggravated and told Lopez, “I knew I should have never gotten involved with you
9
guys, and you guys couldn’t even handle this one little thing.” Sandoval kept calling Lopez, but
Lopez turned his phone off and the next day changed his number. Lopez was arrested a couple
days later due to outstanding traffic warrants.
Martin testified “we were supposed to pick up . . . a lady and her mom,” then hold Auralila
and kill her mom by chopping off her head. After they were unable to locate Auralila and her
mom, the plan was to question Rosete to see if he could help them find her. If he could not help,
they were going to kill him as well.
Renovato was arrested the following Friday. In Renovato’s initial statement, he claimed
to know little of what was going on. He stated he did not know why Lopez was following
Auralila or why Lopez was supposed to pick her up.
After Sandoval’s arrest, police searched the car he was driving and found a manila
envelope which contained various documents addressed to Sandoval at 3213 Tierra Ave Pl.
El Paso, Texas 79938. The documents addressed to Sandoval include:
(1) letters regarding his mortgage for 3213 Tierra Ave. Pl.;
(2) Wells Fargo Bank Statements for his savings account;
(3) correspondence from the Municipal Court of the City of El Paso;
(4) April 2, 2010, ATT cell phone bill advising of the immediate suspension if
the bill is not paid;
(5) March 30, 2010 letter for Verizon Wireless to collect account balance of
$986.32;
(6) Chase Bank Checking Account statement for March addressed to Juan
Sandoval DBA Vagos Trucking;
(7) Notice from Texas Department of Public Safety advising Sandoval his
driver license may be suspended for failure to pay a surcharge fee;
10
(8) Collection letter regarding a Target account;
(9) Letter from Landstar advising Sandoval that in processing his fuel and
miles, the gallons reported did not match the fuel receipt submitted dated
March 29, 2010;
(10) Blank forms from Landstar Transportation Logistics, Inc. which include
information to be completed regarding “state . . . miles . . . highways
traveled;”
(11) Completed form for Landstar Carrier Services, driver: Juan Sandoval,
3-17-2010, El Paso, Texas; 3-19-2010 El Paso, Texas; 3-21-2010
Kentwood MI, and the states listed as TX, AR, MO, IL, IN, MI;
(12) A form from LANDSTAR CARRIER GROUP, to be completed when
scanning documents and replaces the trip envelope, trailer number 655004,
Origin City El Paso, TX; Destination City Kentwood, MI; Owner Name
Juan Sandoval;
(13) A form from LANDSTAR CARRIER GROUP, to be completed when
scanning documents and replaces the trip envelope, trailer number 655004,
Origin City Kentwood, MI; Destination City El Paso, TX; Owner Name
Juan Sandoval;
(14) Fuel receipt Petro Travel Center #301, 1925 Horizon Blvd, El Paso, Texas
Saturday April 3, 2010, Company Name LANDSTAR, purchase diesel fuel
243.012 gallons for $721.50;
(15) Fuel receipt Love’s Travel Stops Store 313, Matthews, Missouri on
April 4, 2010, for purchase of diesel, Pump 24 and 100.350 gallons for a
total price of $304.96, trucking company: LANDSTAR;
(16) Pilot Travel Center Receipt, Gary, Indiana, April 5, 2010, for truck diesel
purchase of 177.025 gallons $527.36, company LANDSTAR;
(17) Completed form for Landstar Carrier Services, driver: Juan Sandoval,
3-31-2010, El Paso, Texas; 4-2-2010 El Paso, Texas; 4-4-2010 Kentwood
MI, and the states listed as TX, AR, MO, IL, IN, MI. Total Miles 1745;
(18) Completed form for Landstar Carrier Services, driver: Juan Sandoval,
4-4-2010, Kentwood, MI; 4-4-2010 Kentwood, MI; 4-6-2010 El Paso, TX,
and the states listed as MI, IN, IL, MO, AR. TX. Total Miles 1745;
(19) A “SHIPPER” form which reflects ship to: Lacks, 4080 Barden Dr.,
11
Kentwood, MI 49512 and trailer comments: T. SOTO LANDSTAR.
There were also, two letters dated February 11, 2010 and February 24, 2010 addressed to
Auralila Brenes, 3213 Tierra Ave Pl. El Paso, Texas 79938. Each letter to Auralila is from the
Aaronson Law firm regarding the disposition of two traffic tickets she had received.
At trial, Terrence O’Connor (“O’Connor”), an associate professor in the electrical and
computer engineering technology department of Purdue University, testified as an expert
consultant who analyzed the cell phone evidence. O’Connor was provided with cell phone
records pertaining to phone numbers 915-261-3109 (belonging to or in the possession of
Sandoval) and registered in the name of Auralina Brene. He was also provided with the cell
phone records of 915-234-3889 (belonging to Lopez). O’Connor was able to plot which cell
phone tower antennas were being used when cell phone number “3109” was communicating with
cell phone number “3889,” and a report of this analysis was entered into evidence at the trial. The
cell phone records of “3109” indicate it was with ATT, prepaid, and activated on April 3, 2010.
The cell phone records reflected the first call made from Lopez to Sandoval’s cell phone
was at 5:24 pm on April 4, 2010, and no previous calls had been made between these numbers. At
the time of this first call, Sandoval’s cell phone was in Arkansas. O’Connor testified that
Sandoval’s cell phone continued in a north-easterly path toward Michigan. O’Connor analyzed
the frequency of the calls between the phones and noted that the periods of time between the calls
varied from being as short as a few seconds, with the longest break being about an hour and twenty
minutes. The average call duration between calls was approximately twenty minutes. O’Connor
determined that Sandoval’s cell phone was moving between 60 and 80 mph.
O’Connor characterized the communications between the cell phones as “frantic,” due to
12
the duration and extremely high frequency of the calls that continued over two days. 8 O’Connor
noted that the user of Sandoval’s cell phone could not have slept more than forty minutes during
the night of April 4 and that, even though there was a stop at the Gerald R. Ford International
Airport for approximately six hours, Sandoval’s cell phone was in constant use with the longest
duration between calls being forty minutes. The last incoming call from Lopez’ cell phone to
Sandoval’s cell phone was on April 5, 2010 at 8:26 pm. On April 6, 2010, there were calls from
Sandoval’s cell phone to Lopez’ cell phone, but no connection. O’Connor acknowledged that
there was no way to tell who was talking on the phones or what was being said.
The cell phone records of “3109” reflected two stops or pauses where the phone either
slowed or stopped its movement. The timing of a stop on April 5 was consistent with the fuel
receipt from a truck stop in Gary, Indiana. The timing of a second stop was also consistent with
a fuel receipt from a truck stop in Matthews, Missouri on April 4. Further, they show that “3109”
made or received approximately 290 calls or attempted calls from April 4, 2010 through April 5,
2010 from cell phone number “3889,” Lopez’ cell phone.
Daniel Dalli had an account with Sprint for a cell phone assigned the number of
915-861-5898. Sandoval’s cell phone records reflect the user of “3109” first called the user of
“5898” April 3, 2010, 1:16 p.m. The “3109” cell phone records reflect that approximately 141
calls were placed between these two numbers from the initial call on April 3 until the last call on
April 6, 2010 at 9:09 p.m.
In Jail
Lopez and Sandoval met in person for the first time in the El Paso County Jail. Lopez and
8
There were approximately 1,000 calls made from Sandoval’s cell phone on April 4 and 5, 2010, and approximately
600 calls made from Lopez’ cell phone during the same time.
13
Sandoval were seated in the back of a courtroom next to each other. Lopez recognized Sandoval
from the photo he had been shown by police officers after his arrest. In the courtroom, Sandoval
was identified as Juan Sandoval which confirmed his identity to Lopez. Sandoval instructed
Lopez not to say anything; to change Lopez’ statement and that Lopez’ statement was the most
incriminating statement. Sandoval told Lopez to change his statement and say that Lopez “made
up the story.” Sandoval promised Lopez if he changes his statement, the State would drop the
case and only a burglary charge would remain. Lopez initially agrees to change his story, but
only after speaking with Lopez’ attorney. Sandoval insisted his lawyer would take care of that for
Lopez.
Martin also met Sandoval in the El Paso County Jail. Sandoval told Martin that they were
“just supposed to be following the girl and that’s it.” Sandoval also told Martin not to say “that
we are going to go kill everybody, that we should just have been quiet.” Sandoval urged Martin
not to take the plea agreement offered by the State.
Renovato also met with Sandoval when they were assigned to the same cell block. 9
Renovato was also shown a picture of Sandoval by police officers after his arrest. Sandoval later
contacted Renovato and told him the charges would likely be dropped if Renovato wrote a letter.
Sandoval instructed Renovato to state there was a misunderstanding about what was supposed to
happen. Renovato wrote the letter while Sandoval and Renovato were confined to the same
“tank” of the El Paso Jail. Sandoval instructed Renovato that after he wrote it, to give it to him.
Renovato gave the letter to Sandoval. During cross-examination of Renovato at trial, a letter
written and signed by Renovato was offered by the defense and admitted into evidence. The letter
9
An El Paso Sheriff’s Deputy testified that jail records reflected that Renovato and Sandoval were housed in the same
jail pod from July 28 to August 3, 2010, with Renovato in Cell 1207 and Sandoval in Cell 1209.
14
stated that everything is “a lie.” Renovato wrote the letter while Sandoval and Renovato were
confined to the same “tank” of the El Paso Jail. Sandoval encouraged Renovato to have Lopez,
Martin, and Jordan write similar letters.
DISCUSSION
In his sole issue, Sandoval challenges the legal sufficiency of the evidence to support his
conviction. Sandoval argues that the majority of the evidence in the case came from accomplice
witnesses, whose testimony must both be strongly corroborated and whose testimony cannot be
used to corroborate each other’s testimony. Sandoval further argues that there is insufficient
non-accomplice witness testimony to corroborate the accomplice-witness testimony. Sandoval
argues that as a result, the State failed to prove that Sandoval committed the offenses beyond a
reasonable doubt, and that the judgment should be set aside and an acquittal rendered.
Essentially, Sandoval raises two distinct legal theories in his argument: (1) the evidence
was legally insufficient thereby depriving Appellant of his due process rights under the U.S. and
Texas Constitutions; and (2) the conviction cannot be sustained under TEX.PENAL CODE ANN.
§ 15.03(a), (b) and Texas Code of Criminal Procedure Article 38.14. We will address each of
these theories separately. See Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App. 1999), cert.
denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000)(expressly distinguishing legal and
factual sufficiency standards from the accomplice-witness standard of review under Article
38.14).
Accomplice Witness Testimony for Criminal Solicitation
A person commits criminal solicitation 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
15
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.” TEX.PENAL CODE
ANN. § 15.03(a)(West 2011). Thus, the State must prove that Sandoval: (1) with intent that a
capital felony be committed; (2) requested, commanded, or attempted to induce Vicente Lopez; (3)
to engage in specific conduct, that is (a) to deliver Auralila Brenes to Sandoval so he could kill her,
(b) kill Francisca Garcia, (c) kill Flavio Rosete; and (4) that under the circumstances surrounding
the conduct of Vicente Lopez as Sandoval believed them to be would have made Vicente Lopez a
party to capital murder. Once Sandoval, with the intent that a capital murder be committed, acted
to induce Lopez to engage in the conduct to commit the capital murder, the criminal solicitation
offense has been committed. Whatley v. State, 946 S.W.2d 73, 79 (Tex.Crim.App. 1997); Majid
v. State, 713 S.W.2d 405, 407-08 (Tex.App.--El Paso 1986, pet. ref’d).
The statute that directly governs testimony by an accomplice witness in a
criminal-solicitation offense is TEX.PENAL CODE ANN. § 15.03(b). Pursuant to Section 15.03(b),
“[a] person may not be convicted [of criminal solicitation] on the uncorroborated 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.” TEX.PENAL CODE ANN. § 15.03(b). Further, Article 38.14 of the Texas Code of
Criminal Procedure 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.”10 TEX.CODE CRIM.PROC.ANN. art. 38.14 (West 2005). The corroboration requirement
10
Corroborating evidence is “incriminating” evidence that does not come from an accomplice witness. See Claxton,
124 S.W.3d at 765.
16
of Section 15.03(b) embodies the same concept and is equivalent to Article 38.14. Richardson v.
State, 700 S.W.2d 591, 594 (Tex.Crim.App. 1985)(en banc); see also Claxton v. State, 124 S.W.3d
761, 765 (Tex.App.--Houston [1st Dist.] 2003, pet. ref’d).
When evaluating the sufficiency of corroboration evidence under the accomplice-witness
rule, we eliminate the accomplice testimony from consideration and then examine the remaining
portions of the record to see if there is any evidence that tends to connect the accused with the
commission of the crime. Malone v. State, 253 S.W.3d 253, 257 (Tex.Crim.App. 2008). The
sufficiency of non-accomplice evidence is judged according to the particular facts and
circumstances of each case. Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App. 1988). 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.
Simmons v. State, 282 S.W.3d 504, 508 (Tex.Crim.App. 2009); Reed, 744 S.W.2d at 126. When
there are conflicting views of the evidence—one that tends to connect the accused to the offense
and one that does not—we will defer to the fact finder’s resolution of the evidence. Smith v. State,
332 S.W.3d 425, 442 (Tex.Crim.App. 2011); Simmons, 282 S.W.3d at 508. It is not appropriate
for appellate courts to independently construe the non-accomplice evidence. Smith, 332 S.W.3d
at 442; Simmons, 282 S.W.3d at 509.
Corroborating evidence that shows only that the offense was committed is not sufficient.
TEX.CODE CRIM.PROC.ANN. arts. 38.14, 38.141(b); Castillo v. State, 221 S.W.3d 689, 691
(Tex.Crim.App. 2007). Yet, the corroborating, i.e., non-accomplice, evidence need not be
sufficient, by itself, to establish that the accused is guilty beyond a reasonable doubt. Castillo,
221 S.W.3d at 691. Likewise, the corroborating evidence need not directly link the accused to the
17
offense. Castillo, 221 S.W.3d at 691. Circumstances that appear insignificant may constitute
sufficient evidence of corroboration. Malone, 253 S.W.3d at 257. Motive and opportunity
evidence is insufficient on its own to corroborate accomplice-witness testimony, but both may be
considered in connection with other evidence that tends to connect the accused to the crime.11
Reed, 744 S.W.2d at 127; Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App. 2004)(stating that
“[m]otive is a significant circumstance indicating guilt” when analyzing the legal sufficiency of
the evidence); cf. Gill v. State, 873 S.W.2d 45, 48 (Tex.Crim.App. 1994)(defendant’s secretive
actions after the offense used as a corroborating circumstance); Cawley v. State, 166 Tex.Crim. 37,
310 S.W.2d 340, 342 (1957)(evidence of flight is a corroborating circumstance because it is
indicative of a consciousness of guilt).
Corroboration of Accomplice-Witness
We will first examine the non-accomplice testimony which tends to connect Sandoval to
the alleged offense. Sandoval contends that there is insufficient evidence to corroborate the
accomplice witness testimony. As noted above, Article 38.14 provides that a conviction cannot
stand on accomplice testimony unless there is other evidence tending to connect the defendant to
the offense, but the non-accomplice evidence need not be sufficient, in itself, to support a
conviction, and the accomplice witness rule is not governed by federal or state constitutional
standard. Castillo, 221 S.W.3d at 691; Cathey, 992 S.W.2d at 462.
The non-accomplice evidence is as follows:
11
Similarly:
[P]roof that the accused was at or near the scene of the crime at or about the time of its commission,
when coupled with other suspicious circumstances, may tend to connect the accused to the crime so
as to furnish sufficient corroboration to support a conviction.
Richardson v. State, 879 S.W.2d 874, 880 (Tex.Crim.App. 1993), quoting Brown v. State, 672 S.W.2d 487, 489
(Tex.Crim.App. 1984).
18
(1) Cell phone records introduced at trial showed: (1) prior to April 4 there had been no
calls on either phone (“3889” or “3109”) between Lopez and Sandoval; the first call
made between these phones was the early evening of April 4, 2010; when the first call
was made, Sandoval’s cell phone was in Arkansas and continued in a north-easterly
path toward Michigan, moving at 60 to 80 mph. The cell phone records reflected two
stops or pauses where the phone either slowed or stopped its movement, one consistent
with a fuel stop on April 5 in Gary, Indiana, the other with a fuel stop in Matthews,
Missouri on April 4. The user of Sandoval’s cell phone could not have slept more
than forty minutes during the night of April 4 and Sandoval’s cell phone was in
constant use; the last incoming call from Lopez’ cell phone to Sandoval’s cell phone
was on April 5, 2010 at 8:26 pm. On April 6, 2010, there were calls from Sandoval’s
cell phone to Lopez’ cell phone, but no connection; and there were approximately one
thousand calls made from Sandoval’s cell phone on April 4 and 5, 2010, and
approximately 600 calls made from Lopez’ cell phone during the same time. Cell
phone records of Sandoval and Lopez corroborate Lopez’ testimony regarding the calls
between them.
(2) Incident to Sandoval’s arrest, police conducted an inventory of the car he was driving
and located a manila envelope. The envelope contained a number of documents which
included two Landstar packets. One packet reflected a trip by Sandoval on April 4
from El Paso to Kentwood, Michigan and contained a receipt for fuel obtained in
Matthews, Missouri on April 4. The second showed a return trip by Sandoval on
April 4 from Kentwood, Michigan to El Paso and contained a fuel receipt from Gary,
Indiana, on April 5. These two receipts location, date, and time coincided exactly
with the expert’s triangulation of calls from Sandoval’s cell phone. These receipts
also corroborate Lopez’ testimony that Sandoval was out of town.
(3) The cell phone Sandoval used was registered in the name of Auralina Brene and had
been opened on April 3, 2010. Correspondence from Auralila’s attorney was received
at Sandoval’s residence addressed to Auralila Brenes. This corroborates Lopez and
Rosete’s testimony of a connection between Sandoval and Auralila.
(4) Auralila had introduced Sandoval to Rosete at her house. Rosete had last seen
Sandoval at Auralila’s house in January 2010, three to four months prior to her moving
on April 4. Rosete corroborates Lopez’ testimony that Rosete was driving the Budget
truck and he is Auralila’s neighbor. Rosete corroborates Lopez that Rosete was
working at a maquiladora in April 2010. Rosete corroborates Lopez’ testimony
regarding the chase by Lopez’ blue car; that Lopez got out and approached the truck
and Rosete took off. Further, Rosete corroborates Lopez and Martin’s effort to speak
with him at his house on Monday, April 5.
(5) The two security videos from Wal-Mart showing Lopez, Martin, and Renovato buying
supplies on two separate occasions, to include a bat and a machete. Lopez’ purchase
of the machete supports his testimony that Sandoval wanted Auralila’s mother killed by
19
having her head chopped off.
(6) El Paso Sheriff Department records indicate that Renovato and Sandoval were housed
in the same jail pod from July 28 to August 3, 2010. This evidence corroborates
Renovato’s testimony regarding Sandoval’s efforts to get him and other accomplice
witnesses to change their statements. Renovato’s letter written in jail and given to
Sandoval corroborates Renovato’s testimony and Sandoval’s conduct.
(7) Lopez’ testimony is corroborated by evidence:
(a) that Dalli does in fact live on Willowmist;
(b) Dalli’s house on Willowmist is a few blocks from Auralila’s house on
Godwin;
(c) the cell phone number Dalli gave Lopez and identified by Lopez as
Sandoval’s phone number is connected to the defendant through the expert’s
testimony and the trip receipts;
(d) from April 3 through April 6, Dalli’s cell phone number and Sandoval’s
number make contact or attempt to make contact approximately 141 times.
(8) The lack of a motive and/or relationship between accomplice-witnesses Lopez, Martin,
and Renovato to Auralila, her mother, or Rosete.
(9) The fact that Lopez, Martin, and Renovato pled guilty to criminal conspiracy to commit
capital murder and engaging in organized criminal activity in exchange for a sentence
of 10-years’ imprisonment.
(10) According to Lopez, Sandoval told him Rosete worked at a maquila. Rosete testified,
that at the time, he worked at a maquila. Lopez also testified to Sandoval directing
them to take Rosete’s daughter as a hostage. Rosete testified he has two daughters.
Lopez’ testimony is corroborated by Rosete.
(11) Sandoval’s introduction into evidence Renovato’s letter that attempted to exonerate
Sandoval corroborates Renovato’s testimony surrounding the circumstances of the
letter.
(12) The accomplice-witnesses identify the individual directing them on the cell phone as
Jose Sandoval. The defendant’s name is Jose Juan Sandoval. This corroborates their
testimony.
We find that rational jurors could find sufficient evidence to connect Sandoval with the
offense.
Legal Sufficiency
20
In Brooks v. State, the Court of Criminal Appeals abandoned factual sufficiency review in
those cases where the burden of proof is beyond a reasonable doubt. Brooks v. State, 323 S.W.3d
893, 894-95 (Tex.Crim.App. 2010)(finding no meaningful distinction between the legal and
factual sufficiency standards and no justification for retaining both standards, therefore overruling
the factual sufficiency review adopted in Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App.
1996)). The legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court applies in
determining whether the evidence is sufficient to support a conviction. Brooks, 323 S.W.3d at
894-95. Therefore, we will review the evidence under the Jackson legal sufficiency standard and
determine whether the evidence is sufficient to support the challenged elements beyond a
reasonable doubt. See id., citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.
When reviewing the sufficiency of the evidence to support a criminal conviction, we view
the evidence in the light most favorable to the verdict to determine whether, based on that evidence
and reasonable inferences therefrom, a rational juror could have found the essential elements of the
offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex.Crim.App. 2011),
citing Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2788-89; Hooper v. State, 214 S.W.3d 9,
13 (Tex.Crim.App. 2007)(quoting same); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.
2007)(same).
Under a legal sufficiency review, we may not substitute our judgment for that of the jury,
who is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given
to the evidence. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App. 2007). We therefore
defer to the jury’s resolution of these issues and to its responsibility to draw reasonable inferences
21
from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13, citing Jackson, 443 U.S. at 318-19,
99 S.Ct. at 2788-89. In resolving what the facts are and what reasonable inferences may be drawn
from them, the jury may accept one version of the facts and reject another, and it may reject any
part of a witness’s testimony, even if uncontradicted. See Margraves v. State, 34 S.W.3d 912,
919 (Tex.Crim.App. 2000), overruled on other grounds, Laster v. State, 275 S.W.3d 512(Tex.Crim.App. 2009); Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App. 2008)(“The jury is
the sole judge of a witness’s credibility, and the weight to be given the testimony, it may choose to
believe some testimony and disbelieve other testimony.”). In analyzing legal sufficiency, we
“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.”
Clayton, 235 S.W.3d at 778, citing Hooper, 214 S.W.3d at 16-17.
Our review of “all of the evidence” includes evidence that was properly and improperly
admitted. Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we
presume that the fact finder resolved the conflicts in favor of the prosecution and therefore defer to
that determination. Id. Direct and circumstantial evidence are treated equally: “Circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt.” Hooper, 214 S.W.3d at 13.
Accomplice witness testimony can be sufficient to support a conviction under the Jackson
legal sufficiency standard. See Taylor v. State, 10 S.W.3d 673, 684-85 (Tex.Crim.App. 2000);
see also Powell v. State, 194 S.W.3d 503, 507 (Tex.Crim.App. 2006)(“[A] reviewing court is
permitted to consider all evidence in the trial-court record, whether admissible or inadmissible,
when making a legal-sufficiency determination.”); McDuff v. State, 939 S.W.2d 607, 614
22
(Tex.Crim.App. 1997), cert. denied, 522 U.S. 844, 118 S.Ct. 125, 139 L.Ed.2d 75(1997)(accomplice testimony need not be corroborated to be legally sufficient to show corpus
delicti); see also Cathey, 992 S.W.2d at 462-63 (“The accomplice witness rule is a statutorily
imposed sufficiency review and is not derived from federal or state constitutional principles that
define the legal and factual sufficiency standards.”).
An element of a crime is the identity of the defendant as the individual who actually
committed the offense. Greene v. State, 124 S.W.3d 789, 792 (Tex.App.--Houston [1st Dist.]
2003, pet. ref’d)(holding identity is an element of the offense which may be proven by direct or
circumstantial evidence). An in-court identification of a defendant, in which the victim had
observed for only fifteen minutes during an aggravated robbery is legally sufficient to support a
conviction. Johnson v. State, 176 S.W.3d 74, 77-8 (Tex.App.--Houston [1st Dist.] 2004, pet.
ref’d).
Any conduct on the part of a person accused of a crime, subsequent to its commission,
which indicates a consciousness of guilt may be received as a circumstance tending to prove that
he committed the act with which he is charged. Cueva v. State, 339 S.W.3d 839, 881-82
(Tex.App.--Corpus Christi 2011, pet. ref’d). Further, any evidence of a defendant’s attempt to
persuade a witness to modify their potential testimony or suppress it altogether shows a
consciousness of guilt. Brown v. State, 657 S.W.2d 117, 119 (Tex.Crim.App. 1983); Johnson v.
State, 583 S.W.2d 399, 409 (Tex.CrimApp. 1979). Such evidence can be considered
circumstantial evidence indicating consciousness of guilt on the part of the accused. See Cueva,
339 S.W.3d at 882; King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App. 2000)(noting that
consciousness of guilt was included in evidence supporting legally sufficient evidence to support
23
connection to crime). More importantly, “[a] ‘consciousness of guilt’ is perhaps one of the
strongest kinds of evidence of guilt.” Torres v. State, 794 S.W.2d 596, 598 (Tex.App.--Austin
1990, no pet.).
Sufficiency of the Evidence
We now turn to the sufficiency of the evidence and, in doing so, consider all of the
evidence presented, including the accomplice witness’s testimony. Clayton, 235 S.W.3d at 778;
Powell, 194 S.W.3d at 507. We will look at all of the evidence presented as it relates to each
count of the indictment which Sandoval was found guilty.
Proof of Solicitation
Lopez, Martin, and Renovato’s extensive testimony of the content of the innumerable cell
phone conversations with Sandoval supports the jury’s conclusion that Sandoval solicited Lopez
to commit capital murder. Moreover, Lopez identified Sandoval, in court, as the individual who
asked him to change his statement when they were together in jail. Lopez stated Sandoval asked
him to kidnap Auralila, hold her until he returned so he could murder her, kill Auralila’s mother
and Rosete. In return, Sandoval offered Lopez $50,000 dollars and the option to take whatever
Lopez wanted of Auralila’s property. Lopez stated he agreed to Sandoval’s proposal for the
money.
The Wal-Mart videos show that Lopez, Martin, and Renovato acted upon the inducement
of Sandoval. They purchased the necessary items to kidnap Auralila, kill her mother and Rosete.
Rosete testified Lopez had followed him and gone to Rosete’s home. This is further evidence that
would allow a jury to conclude that Lopez was solicited by Sandoval.
The cell phone records corroborate the three accomplice witnesses’ testimony of the
24
approximately 290 calls between Lopez and Sandoval from April 4, 2010 at 5:24 p.m. until
April 5, 2010 at 8:26 p.m. Those records also corroborate Lopez’ testimony that until April 4,
there had been no calls between Sandoval and Lopez. Sandoval’s cell phone calls also
correspond to the Landstar packets with gas receipts of his travel to and from Michigan.
A jury could have reasonably inferred from this testimony that Sandoval was the person
communicating with Lopez on April 4-5, 2010. Sandoval with the intent to kill Auralila, her
mother, and Rosete, induced Lopez to hold Auralila so Sandoval could murder her, kill her mother,
and Rosete. Sandoval, with the intent that a capital murder be committed, acted to induce Lopez
to engage in the conduct to commit the capital murder, thus the criminal solicitation offense had
been committed.
Count I – Auralila Brenes
Sandoval initially offered Lopez $200 to check on Auralila Brenes who lived on Mike
Godwin street and see what she was doing. Lopez did so, reporting to Sandoval that he saw
Auralila moving furniture and a safe into a Budget moving truck. Auralila was being helped by
her mother and her neighbors, Rosete and his wife. Sandoval offered Lopez $500 to follow
Auralila and find out where she was moving, as Sandoval claimed the safe contained $250,000 in
drugs and money. Sandoval also thought Auralila was cheating on him. Lopez tried following
Auralila, but lost her and then he followed the Budget truck.
Rosete corroborates that as he was driving the Budget truck, he was followed by a blue car
which he identified at trial as the one that followed him. Then, Sandoval offered Lopez up to
$50,000 if Lopez would kidnap Auralila, murder Auralila’ mother by chopping off her head, and
hold Auralila until Sandoval could kill her. Lopez accepted the offer and enlisted Martin,
25
Renovato, and Jordan to assist him.
Considering the non-accomplice and accomplice testimony and evidence, viewed in the
light most favorable to the verdict, the evidence was legally sufficient to support Sandoval’s
conviction on Count I of the indictment. Gear, 340 S.W.3d at 746.
Count II – Francisca Garcia
As noted, Sandoval told Lopez he would pay him $10,000 if Lopez would kidnap Auralila
and murder Garcia, Auralila’s mother, by chopping off her head. Sandoval allegedly believed
that Auralila’s mother put a hex on him, which is why he wanted her head chopped off. Security
video from a Wal-Mart showed Lopez and his fellow gang members purchasing a machete in order
to perform this task. Viewed in the light most favorable to the verdict, the evidence was legally
sufficient to support Sandoval’s conviction on Count II of the indictment, that Sandoval solicited
Lopez with the promise of remuneration to kill Francisca Garcia. Gear, 340 S.W.3d at 746.
Count III – Flavio Rosete
Sandoval was informed that Rosete was assisting Auralila’s move by Lopez. When the
attempts to locate Auralila were unsuccessful, Sandoval told Lopez to break into Rosete’s house
and “do whatever needs to be done” to get him to say where Auralila had moved to. If Rosete
could not help, he was to be killed as well. Lopez and Martin attempted to execute these
instructions by going to Rosete’s house, but no one answered when they knocked. Rosete
testified that he saw Lopez’ car drive by his house and refused to answer the door.
Considering Rosete’s and the accomplice witnesses’ testimony and evidence, viewed in
the light most favorable to the verdict, the evidence was legally sufficient to support Sandoval’s
conviction on Count III of the indictment, soliciting Lopez with the promise of remuneration to kill
26
Rosete if he failed to provide Auralila’s location. Gear, 340 S.W.3d at 746.
Consciousness of Guilt
Following Sandoval’s arrest, he approached Lopez in the El Paso County Jail and asked
Lopez to change his statements in which Lopez had incriminated Sandoval and themselves.
Sandoval told Lopez to change his statement to say that Lopez “had made up the story.” Sandoval
promised Lopez the charges would be dropped if Lopez changed his story. Sandoval asked
Martin not to say that they were “going to go kill everybody,” and they “should just have been
quiet.” He instructed Martin not to take the deal the prosecutor had offered him.
While at the El Paso County Jail, Sandoval repeatedly attempted to speak with Renovato.
Eventually, Sandoval told Renovato to write a letter, telling him if he writes it, “I’m pretty sure that
the D.A. isn’t going to have anything else against you guys, or any of us.” Sandoval reassured
Renovato if he wrote the letter that “I’m pretty sure I can get you off for all of this . . . .” Renovato
asked Sandoval what to write. Sandoval told him, “you had a misunderstanding in what was
supposed to really happen.” Sandoval gave Renovato paper and pen. Renovato wrote the letter,
signed it and gave it to Sandoval while they were in jail together. In the letter, Renovato stated
that “[e]verything . . . [in my case] has been a lie . . . .” Renovato admitted the letter is what
Sandoval told him to write. Sandoval also requested Renovato obtain similar statements from
Martin and Jordan. Renovato’s original letter was introduced at trial by Sandoval.
Viewing all of the evidence in the light most favorable to the verdict, a rational jury could
reasonably conclude that Sandoval was guilty of the charged offenses. Gear, 340 S.W.3d at 746.
Sandoval’s sole issue is overruled.
Judgment
27
We have reviewed the judgment entered by the trial court and find it requires reformation.
Article 37.12 requires the trial court to enter a proper judgment on each verdict of acquittal or
conviction. TEX.CODE CRIM.PROC.ANN. art. 37.12 (West 2006). Further, Article 42.01 requires
that the judgment reflect “[t]he offense or offenses for which the defendant was convicted.”
TEX.CODE CRIM.PROC.ANN. art. 42.01, § 1(13)(West Supp. 2012). If a defendant receives
multiple convictions in a single trial, those verdicts may be memorialized in multiple judgments.
Morales v. State, 974 S.W.2d 191, 192 (Tex.App.--San Antonio 1998, no pet.). Article 42.01
permits a court enter a single judgment reflecting multiple convictions, but the judgment must
clearly reflect the jury verdict on each count and the offenses, as well as the sentence imposed for
each conviction.
The jury found Sandoval guilty of Counts I, II, and III and acquitted him of Count IV. The
State dismissed Count V. At the top of the first page of the judgment, the judgment identifies the
cause number and refers to “Counts I - IV of V.” The judgment is erroneous because it fails to
reflect that Sandoval was acquitted of Count IV. The judgment is reformed to reflect Appellant
was acquitted of Count IV. See TEX.R.APP.P. 43.2(b).
Other than the reference to “Counts I - IV of V” at the top of the first page, the judgment
fails to reflect that the jury returned three separate guilty verdicts on Counts I, II, and III. Further,
the judgment does not clearly reflect that Sandoval was convicted of three counts of criminal
solicitation to commit capital murder. Under the heading, “Offense for which Defendant
Convicted,” the judgment states only “Criminal Solicitation (Capital Murder).” The judgment is
therefore reformed to reflect that the jury returned a guilty verdict on each count (I, II, and III) and
Sandoval was convicted of three counts of criminal solicitation to commit capital murder. See
28
TEX.CODE CRIM.PROC.ANN. art. 42.01, § 1(7), (13); TEX.R.APP.P. 43.2(b).
The judgment reflects only a single sentence of imprisonment for a term of thirty years in
TDCJ-ID even though the jury found Sandoval guilty of three counts. When an accused is found
guilty of multiple offenses in a single criminal proceeding, the court must pronounce a sentence for
each offence. See TEX.PENAL CODE ANN. § 3.03(a)(West Supp. 2012). Further, the sentence for
each count must be reflected in the judgment. See TEX.CODE CRIM.PROC.ANN. art. 42.01,
§ 1(15). We therefore reform the judgment to reflect that the trial court sentenced Appellant to
serve a thirty-year term of imprisonment on each count. Finally, the trial court’s judgment does
not reflect whether the sentences are to be served concurrently or consecutively. In this case, the
sentences must run concurrently. See TEX.PENAL CODE ANN. § 3.03(a). We reform the
judgment to reflect that the sentences for Counts I, II, and III will run concurrently. See
TEX.CODE CRIM.PROC.ANN. art. 42.01, § 1(19). Having overruled each issue presented on
appeal, we affirm the judgment as so modified.
October 30, 2013
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Do Not Publish)
29