Adan Gaona v. the State of Texas

IN THE
TENTH COURT OF APPEALS
No. 10-17-00345-CR
ADAN GAONA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court No. F50651
MEMORANDUM OPINION
Appellant Adan Gaona was convicted by a jury of the offenses of murder and
tampering with a human corpse. Gaona entered a plea of guilty to a separate charge of
possession of between five and fifty pounds of marihuana. The jury assessed
punishment on all three counts—life imprisonment for the murder charge, twenty
years’ imprisonment for the tampering with a human corpse charge, and ten years’
imprisonment for the marihuana charge. All sentences were ordered to run
concurrently, and a separate judgment was entered for each offense.
After briefing was concluded in this appeal, we directed Gaona’s appellate
counsel to file an amended brief because the marihuana conviction was not addressed
in the initial brief. We directed counsel to address any alleged error attributable to that
conviction or to file an Anders-type motion to withdraw and supporting brief. See
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Gaona’s counsel
complied and filed a supplemental brief. The State then filed a supplemental reply
brief. Gaona subsequently obtained new counsel who has filed a second supplemental
brief, and the State has also filed a second supplemental reply brief. Gaona raises a total
of six issues in his various briefs. We will affirm.
Background
Johnson County authorities were notified by Gaona’s sister that her stepfather,
Antonio Galvan, was missing. The sister told authorities that Gaona was in possession
of Galvan’s truck and cell phone and that she feared Gaona had harmed Galvan.
Deputies went to the rural property outside Alvarado where Gaona resided to
investigate. Gaona denied any knowledge of Galvan’s location. However, the truck
Galvan ordinarily used was parked on the property, and the deputies observed that
Gaona was sweating heavily and covered in dirt. Deputies contacted Gaona’s mother,
the registered owner of the truck, who told them that Gaona did not have permission to
drive the truck. Gaona was placed under arrest for driving the truck without
authorization, and he was transported to the Johnson County Law Enforcement Center.
During booking, officers discovered a plastic baggie in Gaona’s pocket containing three
Gaona v. State Page 2
spent shell casings. Deputies also discovered a marihuana grow operation set up in the
main house on the property. The marihuana was valued at over $100,000.
Deputies recovered Galvan’s body the next day after a more extensive search of
the property. Galvan’s body was partially covered with dirt and leaves and was located
next to a freshly dug grave. Galvan’s body was transported to the Tarrant County
Medical Examiner’s Office for an autopsy. The autopsy revealed two gunshot wounds
to the face—one to the left eye and one to the left cheek. Another gunshot wound was
located in the left chest/shoulder area. The two head shots were both fatal wounds.
Bullet fragments recovered from Galvan’s body and the shell casings taken from
Gaona’s pocket were consistent with .38 caliber ammunition. Russell Lutz, who lived in
a mobile home on the Alvarado property and assisted in the marihuana-grow
operation, told deputies that Gaona possessed a .38-caliber pistol and that Gaona had
admitted shooting Galvan. Lutz was also taken into custody and subsequently charged
with possession of marihuana and tampering with evidence.
Issues
In his initial brief, Gaona presents the following issues:
1. The trial court erred in accepting the jury’s verdict as the evidence
was insufficient to support the conviction for murder.
2. The trial court erred in accepting the jury’s verdict as the evidence
was insufficient to support the conviction for tampering with
evidence—corpse.
In his first supplemental brief, Gaona presents the following issue:
Gaona v. State Page 3
1. The trial court erred in accepting the jury’s punishment verdicts as
they violate the constitutional provision against cruel and unusual
punishment.
Gaona presents the following issues in his second supplemental brief:
1. The evidence was legally insufficient to support the verdict for
murder because (1) the evidence did not show that Gaona killed
Galvan as a principal or a party, and (2) the evidence did not show
that Gaona acted with the required mental state.
2. The trial court erred in excluding evidence that Galvan sexually
assaulted Gaona’s family members.
3. The trial court erred in instructing the jury that Gaona could be
found guilty as a party to Galvan’s murder.
Discussion
A. Sufficiency of the Evidence. The Court of Criminal Appeals has expressed
our standard of review of a sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we
consider whether, after viewing all of the evidence in the light most
favorable to the verdict, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed.2d 560 (1979); Villa v.
State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires
the appellate court to defer "to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S.
at 319, 99 S.Ct. 2781. We may not re-weigh the evidence or substitute our
judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007). 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. Villa, 514 S.W.3d at 232. Although
juries may not speculate about the meaning of facts or evidence, juries are
permitted to draw any reasonable inferences from the facts so long as each
inference is supported by the evidence presented at trial. Cary v. State, 507
S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319, 99
S.Ct. 2781); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App.
2007). We presume that the factfinder resolved any conflicting inferences
Gaona v. State Page 4
from the evidence in favor of the verdict, and we defer to that resolution.
Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is
because the jurors are the exclusive judges of the facts, the credibility of
the witnesses, and the weight to be given to the testimony. Brooks v. State,
323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and
circumstantial evidence are equally probative, and circumstantial
evidence alone may be sufficient to uphold a conviction so long as the
cumulative force of all the incriminating circumstances is sufficient to
support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim.
App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient
to support a conviction by comparing it to "the elements of the offense as
defined by the hypothetically correct jury charge for the case." Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
correct jury charge is one that "accurately sets out the law, is authorized
by the indictment, does not unnecessarily increase the State's burden of
proof or unnecessarily restrict the State's theories of liability, and
adequately describes the particular offense for which the defendant was
tried." Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App.
2013). The "law as authorized by the indictment" includes the statutory
elements of the offense and those elements as modified by the indictment.
Daugherty, 387 S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
1. Murder. A person commits murder if he “intentionally or knowingly
causes the death of an individual” or “intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the death of an individual.”
TEX. PENAL CODE ANN. §§ 19.02(b)(1), (2). Knowledge and intent are almost always
proven by circumstantial evidence and may be inferred from a person's acts, words, and
conduct, as well as the surrounding circumstances. Guevara v. State, 152 S.W.3d 45, 50
(Tex. Crim. App. 2004). A jury may infer specific intent to kill from use of a deadly
weapon in a deadly manner. Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App.
1993). A handgun is a deadly weapon “and when used by a defendant an intent to kill
Gaona v. State Page 5
is presumed.” Williams v. State, 567 S.W.2d 507, 509 (Tex. Crim. App. 1978); see also
Watkins v. State, 333 S.W.3d 771, 781 (Tex. App.—Waco 2010, pet. ref’d). Additionally,
motive is a significant circumstance indicating guilt. Guevara, 152 S.W.3d at 50.
Gaona does not contest that Galvan was murdered. In his initial brief, Gaona
asserts that he did not commit the murder. In his second supplemental brief, Gaona
asserts that the evidence was insufficient to establish that he was the one who shot
Galvan—that the evidence only supports a finding that Gaona acquired the knowledge
of Galvan’s death after the fact. Gaona also asserts that, even if the evidence permitted
the jury to find that he was the shooter, the evidence did not establish that Gaona acted
intentionally or knowingly. Gaona contends that if he shot Galvan, the shooting was
not intentional because Galvan was not shot at close range. Thus, Gaona argues, “there
is no evidence that, if [Gaona] was the shooter, he knew that he was firing toward
[Galvan] or even that he knew [Galvan] was downrange from the gun.”
There were no witnesses to the murder. The firearm that was used to commit the
murder was not found by law enforcement. The shell casings recovered from Gaona’s
pocket contained no fingerprints, and the shell casings were not subjected to DNA
analysis. At the time of his arrest, Gaona had no blood on his hands, clothing, or shoes.
However, there was sufficient circumstantial evidence to support the jury’s verdict. As
previously noted, circumstantial evidence alone may be sufficient to uphold a
conviction so long as the cumulative force of all the incriminating circumstances is
sufficient to support the conviction. Ramsey, 473 S.W.3d at 809.
Gaona v. State Page 6
The evidence at trial established that Gaona’s mother leased property close to
Alvarado containing a house and approximately twenty-two acres. Gaona moved into
the house on the property shortly after the lease was finalized. Galvan had visited the
property on one occasion while the lease was being negotiated.
Gaona’s mother and sister testified that Galvan left his home in Arlington at
approximately noon on Saturday, May 21st to assist Gaona with some plumbing issues
at the Alvarado property. Galvan told Gaona’s mother that he would call Gaona when
he was close to the property because he did not know how to get there. No one other
than Gaona admitted to seeing Galvan alive after that time.
Gaona drove to his sister’s apartment in Arlington around 2:00 p.m. in Galvan’s
truck. Gaona told his sister that they needed to go talk to their mother because Gaona
and Galvan had an argument and Galvan had “walked away.” Gaona’s sister then
drove Gaona to their mother’s home. Gaona’s mother and sister informed investigating
officers that Gaona told them the following: (1) Gaona and Galvan argued over the
presence of the marihuana-grow operation at the Alvarado property; (2) Gaona took
Galvan’s phone to prevent Galvan from taking photographs of the marihuana-grow
operation; and (3) Galvan left the Alvarado property without his truck or cell phone
and was not coming back. Gaona first told them that Galvan drove away in his truck
after the argument, but then said that Galvan walked away when confronted with the
fact that his sister saw him driving Galvan’s truck. Gaona also threatened to kill himself
in front of his mother and sister rather than go to jail if they called the police.
Gaona v. State Page 7
Gaona’s sister drove to the Alvarado property to look for Galvan, but no one was
there. When the sister returned to her apartment, Galvan’s truck was gone. Gaona’s
sister contacted law enforcement on Sunday, May 22nd at their mother’s urging to
report Galvan missing.
Lutz testified that when he left the Alvarado property on the morning of May
21st, he saw no one on the property, including Gaona or Galvan. After Lutz returned
later that evening, Gaona drove up in a white pickup truck. When Lutz inquired about
the truck, Gaona told him that it belonged to Galvan and that Galvan was “dead out in
the woods.” The next morning, Lutz found Galvan’s body in the woods about one
hundred yards behind the main house. Lutz and Gaona took steps to bury Galvan’s
body in the woods.
In a statement to investigating officers, Lutz said that Gaona admitted shooting
Galvan. Lutz was less clear about this exchange when he testified but admitted making
the statement to investigators. Lutz testified that Galvan had a .38 handgun. Gaona
testified that Juan, also known as “Primo” and who was an associate of a drug cartel,
kept a .38 revolver and other weapons on the Alvaredo property—“that was his
weapons for the house.”
A Texas Ranger, who assisted in the investigation, questioned Gaona. The
Ranger told Gaona that Galvan’s body had been discovered. Gaona responded that he
did not own a gun. At that point, it was unclear how Galvan had been killed.
Gaona had no explanation for the shell casings in his pocket other than that he
was wearing Lutz’s pants.
Gaona v. State Page 8
In a recorded jail conversation between Gaona and his oldest sister, Gaona asked
her to tell the witnesses who testified on his behalf to follow his lawyer’s defense
strategy even if they had to lie.
Gaona raised two defenses at trial: (1) he had an alibi for the time Galvan was
murdered; and (2) the drug cartel had Galvan killed because he was skimming money
from their drug operation.
Gaona’s alibi defense was not supported by the evidence. The medical examiner
testified that it was impossible to ascertain the actual time Galvan was killed, but the
condition of the body was consistent with Galvan being killed on May 21st.
Gaona testified that he got into the drug trafficking business because of Galvan.
Gaona introduced Galvan to Primo, and Primo and Galvan subsequently began
partnering in local drug distribution. Gaona testified that he was Galvan’s “mule”—
that he would deliver drugs and collect money at Galvan’s behest. Galvan leased the
Alvarado property for the purpose of growing marihuana and using it as a base for
distributing drugs. Lutz, a long-time associate of Primo, moved onto the Alvarado
property to take care of the marihuana-grow operation.
Gaona testified that the Alvarado property became a major distribution center
for drugs smuggled from Mexico by the drug cartel. Gaona testified that the drug cartel
suspected Galvan of stealing money from the organization and that the leader of the
drug cartel, visited the Alvarado property on Friday, May 20th and announced his
intention to kill Galvan. Also present at the discussion were Primo and two others.
Gaona v. State Page 9
Besides the cartel leader, none of the others were members of the cartel, merely
associates.
Gaona testified that on Saturday, May 21st he was directed by Galvan to deliver
a shipment of narcotics to an individual in Arlington. Gaona used Galvan’s truck to
move the drugs and left the truck with the keys and drugs inside at his sister’s
apartment complex. Gaona then had his sister drive him to his mother’s residence.
Gaona admitted that he lied to his mother and sister about Galvan’s location in order to
keep his drug activities concealed, but denied that they had any type of argument.
Gaona then got a ride from a friend back to his sister’s apartment. Gaona testified that
the drugs inside the truck had been exchanged for approximately $250,000 in cash.
Gaona then transported the money back to the Alvarado property in Galvan’s truck.
When Gaona arrived, he saw no one on the property. Gaona testified that he placed the
money in the house and then left again to assist his brother who had a flat tire. When
Gaona returned home, only Lutz was there, and Gaona went to bed.
Gaona testified that the first he learned of Galvan’s murder was the next
morning, Sunday, May 22nd, when Lutz woke him up to tell him that Primo had killed
Galvan. Gaona testified that he was afraid to call the police because of the drug
operation, but that he did go with Lutz to Lowe’s. Gaona gave Lutz $100 but testified
that it was for work Lutz had done with the marihuana on Saturday. Gaona further
testified that the grave was mostly dug by Lutz and that he saw Galvan’s body for the
first time when he assisted Lutz in enlarging the grave.
Gaona v. State Page 10
The only evidence linking Galvan to the cartel was Gaona’s testimony. A DPS
agent who instructs other law enforcement officers regarding the Mexican drug cartels,
testified that the facts of Galvan’s murder were inconsistent with the typical murder
committed by the cartel. The agent also testified that the marihuana-grow operation on
the Alvarado property did not comport with a usual cartel drug operation. In the
agent’s experience, the cartel would have security around any narcotics operation, and
there was no security present on the Alvarado property. Also, the cartel would not
allow non-cartel individuals to store their drugs or their money. Nor was there such a
thing as being an associate of the cartel—“You’re either in it or you’re not.” In the
agent’s experience, someone caught stealing from the cartel would be subjected to a
gruesome death that would be publicly displayed as an example, not merely being shot
and buried in the woods.
As noted, Gaona’s second supplemental brief argues that Gaona did not shoot
Galvan intentionally and knowingly because Galvan could have been shot from a
distance making the shooting somehow accidental. The jury was entitled to infer
Gaona’s intent to kill Galvan from the two closely placed gunshots to the face.
Additionally, there is no evidence, not even in Gaona’s testimony, that Gaona was
indiscriminately shooting on the Alvarado property while Galvan was there on
Saturday, May 21st.
As noted, direct and circumstantial evidence are equally probative. Viewing all
the evidence in the light most favorable to the verdict, the jury could rationally find that
Gaona murdered Galvan with a firearm beyond a reasonable doubt. Ultimately, the
Gaona v. State Page 11
issue is one of credibility, and, by their verdict, the jury did not find Gaona credible.
We overrule issue one in Gaona’s initial brief and issue one in Gaona’s second
supplemental brief.
2. Tampering with a corpse. Section 37.09 of the Penal Code provides that
a person commits an offense if the person, “knowing that an offense has been
committed, alters, destroys, or conceals any . . . thing with intent to impair its verity,
legibility, or availability as evidence in any subsequent investigation of or official
proceeding related to the offense.” TEX. PENAL CODE ANN. § 37.09(d)(1); Hines v. State,
535 S.W.3d 102, 109 (Tex. App.—Eastland 2017, pet. ref’d). The offense becomes a
felony of the second degree if the thing concealed is a human corpse. TEX. PENAL CODE
ANN. § 37.09(c). “Actual concealment requires a showing that the allegedly concealed
item was hidden, removed from sight or notice, or kept from discovery or observation.”
Stahmann v. State, 548 S.W.3d 46, 57 (Tex. App.—Corpus Christi–Edinburg 2018), aff’d,
602 S.W.3d 573 (Tex. Crim. App. 2020).
Gaona admitted during his testimony that he knew Galvan had been murdered,
that he and Lutz dug the grave to bury Galvan’s body, that he accompanied Lutz to
Lowe’s to buy lime, and that he gave Lutz the $100 used to buy the lime.
Lutz testified that Gaona told him that Gaona had shot Galvan and that Galvan’s
body was in the woods behind the house. Lutz further testified that when he first
found Galvan’s body, it was covered with “bushes.” Investigating officers testified that
there were two piles of dirt next to the open grave and that Galvan’s body was partially
Gaona v. State Page 12
covered by one pile that was also littered with limbs and debris. Lutz further testified
that Gaona gave him the $100 specifically to buy the lime.
The jury could infer from the foregoing that Gaona shot Galvan then covered
Galvan’s body with brush to delay the body’s discovery. The jury could also infer that
Gaona assisted Lutz in concealing Galvan’s body, knowing that Galvan had been
murdered, in order to prevent Galvan’s body from being discovered. Applying the
appropriate standard of review, we hold that the evidence is sufficient to support
Gaona’s conviction, either as a principal or a party, for tampering with a corpse.
We overrule issue two in Gaona’s initial brief.
B. Cruel and unusual punishment. Gaona argues that his sentence was not
proportional to the offense committed, violating his rights under the United States and
Texas Constitutions to be free from cruel and unusual punishment. See U.S. CONST.
amend. VIII, XIV; TEX. CONST. art. I, § 13. Specifically, Gaona argues that because he
was given the maximum sentence on each count, his sentence “exceeds the sentence
imposed on other criminals in the same jurisdiction and the sentence imposed for
commission of the same crime in other jurisdictions.”
A disproportionate sentence claim must be preserved for appellate review either
by objecting when the sentence is imposed or by raising the claim in a timely-filed
motion for new trial. TEX. R. APP. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723
(Tex. App.—Dallas 2003, no pet.) (“Constitutional rights, including the right to be free
from cruel and unusual punishment, may be waived”) (citing Rhoades v. State, 934
S.W.2d 113, 120 (Tex. Crim. App. 1996)). Gaona did not raise this objection at the time
Gaona v. State Page 13
sentence was imposed. Gaona filed a motion for new trial, but it contained only the
general contention that his sentence was “contrary to the law and the evidence.”
In order to preserve error for appellate review, the record must show that an
objection ”stated the grounds for the ruling that the complaining party sought from the
trial court with sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context.” TEX. R. APP. P.
33.1(a)(1)(A). A point of error on appeal must comport with the objection made at trial,
and a party’s failure to properly object can result in the forfeiture of even a
constitutional error. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).
While no “hyper-technical or formalistic use of words or phrases” is
required in order for an objection to preserve an error, the objecting party
must still “let the trial judge know what he wants, why he thinks he is
entitled to it, and to do so clearly enough for the judge to understand him
at a time when the judge is in the proper position to do something about
it.”
Id. (quoting Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009)).
A general complaint like the one raised in Gaona’s motion for new trial does not
preserve error for appellate review. See Rhoades, 934 S.W.2d at 119 (“We have long held
that, for an issue to be preserved on appeal, there must be a timely objection which
specifically states the legal basis for that objection.”); see also Castaneda, 135 S.W.3d at
723 n.1 ( phrase “the verdict is contrary to the law and the evidence” in motion for new
trial insufficient to preserve issue for appeal); Neal v. State, No. 05-19-00699-CR, No. 05-
19-00824-CR, 2020 WL 3958192, at *2 (Tex. App.—Dallas July 13, 2020, no pet.) (mem.
op., not designated for publication) (general complaint that “verdict is contrary to the
Gaona v. State Page 14
law and the evidence” in motion for new trial insufficient to preserve complaint that
punishment was excessive).
We overrule issue one in Gaona’s first supplemental brief.
C. Evidence of Sexual Assaults Committed by Victim. In the second issue in his
second supplemental brief, Gaona asserts that the trial court erred in excluding
evidence that Galvan sexually assaulted several members of Gaona’s family.
We review the trial court’s ruling on the admission of evidence for an abuse of
discretion. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018); see also De La
Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009) (“[A] trial court’s ruling on the
admissibility of extraneous offenses is reviewed under an abuse of discretion
standard.”). “Under this standard, the trial court’s decision to admit or exclude
evidence will be upheld as long as it was within the ‘zone of reasonable disagreement.’”
Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018) (citing McGee v. State, 233
S.W.3d 315, 318 (Tex. Crim. App. 2007)). “If the trial court’s evidentiary ruling is correct
under any applicable theory of law, it will not be disturbed even if the trial court gave a
wrong or insufficient reason for the ruling.” Johnson v. State, 490 S.W.3d 895, 908 (Tex.
Crim. App. 2016).
The trial court granted the State’s motion in limine to exclude any “alleged bad
acts” committed by Galvan. The State objected when Gaona attempted to testify
regarding the sexual allegations against Galvan, arguing that the evidence was not
relevant because it had nothing to do with the state of mind of either Gaona or Galvan.
During a voir dire examination, Gaona testified that he told the cartel crew about
Gaona v. State Page 15
Galvan’s sexual abuse of his relatives and that Primo said he was going to “execute”
Galvan. The State again argued that any allegations of sexual abuse by the victim were
not relevant and that any testimony that someone may have said, “I’m going to kill
him” is inadmissible hearsay. When the trial court inquired as to whether the proposed
testimony was based on hearsay, Gaona’s attorney responded that the statements
consisted of “present sense impression” and “excited utterances.” The trial court
sustained the State’s objection regarding allegations of sexual abuse.
Gaona does not challenge the exclusion of the evidence under Rule 404(b), but
rather asserts that the evidence should have been admissible as relevant under Rule 401.
Gaona specifically argues that his mother’s testimony that Galvan went to the Alvaredo
property on May 21st to address a plumbing issue “contradicted and undermined
[Gaona’s] claim that [Galvan] was deeply involved in the narcotics trade and at the
Property for that reason.” Under Gaona’s theory, if he had been allowed to offer proof
that Galvan sexually abused family members whose outcries were ignored by Gaona’s
mother, that would have led to the conclusion that she would also “have accepted or
ignored [Galvan’s] involvement in drugs.” Gaona’s assertion is that
[i]f [Gaona’s mother] tolerated/supported [Galvan’s] illegal conduct and
[Galvan] had reasons associated with the illegal drug trade to visit the
Property, then the proffered testimony [regarding the sexual abuse] had a
tendency to make it more likely that [Galvan] was involved in the illegal
drug trade and that his murder resulted from “skimming” from the cartel.
The issue Gaona raised in the trial court is not consistent with the issue raised in
this appeal and is, therefore, not preserved. See TEX. R. APP. P. 33.1(a)(1)(A); see also
Clark, 365 S.W.3d at 339. In order to preserve an issue for appellate review, a
Gaona v. State Page 16
complaining party must make a specific objection that corresponds with the objections
and arguments made at trial. See Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App.
1998) (op. on reh’g).
We overrule issue two in Gaona’s second supplemental brief.
D. Jury Charge Error. Gaona argues that the trial court erred in giving an
instruction regarding the law of parties because the evidence did not support such a
charge as it related to the charge of murder. Gaona did not raise this objection at trial.
The jury charge gave a general law of parties instruction and applied it to both
the murder charge and the tampering with evidence charge. Gaona does not object to
the instruction as it relates to the tampering charge.
Assuming without deciding that the trial court erred, we must then analyze the
error for harm. Brock v. State, 495 S.W.3d 1, 13 (Tex. App.—Waco 2016, pet. ref’d). If
error was not preserved by a proper objection, reversal will be granted only if the error
presents egregious harm; meaning that the appellant did not receive a fair and impartial
trial. Id.If the evidence clearly supports a defendant’s guilt as a principal actor, any error
of the trial court in charging on the law of parties is harmless. Cathy v. State, 992 S.W.2d
460, 466 (Tex. Crim. App. 1999); see also Ladd v. State, 3 S.W.3d 547, 565 (Tex. Crim. App.
1999) (“[B]ecause there was no evidence tending to show appellant’s guilt as a party,
the jury almost certainly did not rely upon the parties instruction in arriving at its
verdict, but rather based the verdict on the evidence tending to show appellant’s guilt
as a principal actor.”); see also Walter v. State, 588 S.W.3d 682, 688 (Tex. App.—Eastland
Gaona v. State Page 17
2019, pet. ref’d) (“An appellant is not harmed by the inclusion of an instruction on the
law of parties if the jury ‘almost certainly did not rely upon the parties instruction in
arriving at its verdict, but rather based the verdict on the evidence tending to show
appellant’s guilt as a principal actor.’”) (quoting Ladd, 3 S.W.3d at 565); Nunez v. State,
215 S.W.3d 537, 544 (Tex. App.—Waco 2007, pet. ref’d) (“[W]hen the evidence clearly
supports a defendant’s guilt as a principal actor, an error in charging on the law of
parties is harmless.”).
The evidence, as previously outlined, clearly supported Gaona’s guilt as a
principal not as a party. There was no evidence in the record that Gaona was a party to
Galvan’s murder nor was any such argument made by either the State or Gaona. Even
if the trial court erred in charging on the law of parties as it relates to murder, such error
is harmless because the evidence clearly supports Gaona’s guilt as a principal to
Galvan’s murder.
We overrule issue three in Gaona’s second supplemental brief.
Conclusion
Having overruled all of Gaona’s issues, we affirm the judgments of the trial
court.
MATT JOHNSON
Justice
Gaona v. State Page 18
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed November 3, 2021
Do not publish
[CRPM]
Gaona v. State Page 19