Marcelo Mailland v. State ( 2020 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
MARCELO MAILLAND, § No. 08-19-00063-CR
Appellant, § Appeal from the
v. § 41st Judicial District Court
STATE OF TEXAS, § of El Paso County, Texas
Appellee. § (TC# 20160D04232)
OPINION
After Christian Jorjorian was found shot on a street in El Paso, a Grand Jury indicted
Appellant, Marcelo Mailland, with capital murder. A jury found Appellant guilty of the lesser-
included offense of murder, assessing his punishment at 45 years’ imprisonment. On appeal,
Appellant argues that the trial court erred by (1) denying his motion to suppress an interview that
law enforcement obtained in violation of his Sixth Amendment right to counsel, (2) admitting a
portion of that interview which mentions the co-defendant’s claim that Appellant was the shooter,
and (3) denying his request for two jury instructions. Because we conclude that the issues do not
warrant relief, we affirm the trial court’s judgment.
I. BACKGROUND
On Monday, August 15, 2016, Appellant was spending the night at his parents’ home in
El Paso before he traveled the next day to Tucson, Arizona, to attend college. Appellant’s “really
close” family friend and peer, Marco Nava, asked Appellant if they could hang out that afternoon.
Nava also began exchanging text messages with Christian Jorjorian at approximately 5:30 p.m.
that day to arrange the purchase of two syringes of liquid tetrahydrocannabinol (“THC”), or “wax,”
later that evening. Appellant, driving his gray 2015 Nissan Rogue, picked up Nava, who texted
Jorjorian as they approached a park on El Paso’s westside of town. Jorjorian texted Nava back, at
approximately 6:50 p.m. “get in [his] ride.”
A witness playing basketball at the park recalled that at about 7 p.m., he heard a car pull
up and yelling from within the car. Shortly thereafter, a car door opened, someone yelled, “I’m
going to shoot you, n___! I’m going to shoot you.” Then the car drove off.
A second witness driving in the area at approximately 6:30 p.m. recalled a small SUV roll
through a stop sign, leaving rather quickly. The young driver of the SUV looked back towards the
park as a passenger sat in the back seat. After this, the witness saw what looked like a mannequin
sprawled out on the pavement behind a vehicle. As he approached, the witness realized the figure
was a man who had blood on his shirt and was groaning. Two syringes filled with a greenish liquid
laid next to the body. Responding EMS technicians were unable to revive the victim, identified
as Christian Jorjorian. The coroner would later conclude that Jorjorian died from a gunshot wound
to the chest. The bullet entered the chest cavity, perforating his lungs and heart.
One of Appellant’s high school classmates had friends over that evening. Appellant arrived
at this gathering at approximately 8 p.m. and behaved normally. Appellant had a small cut above
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his eye, which he explained occurred while he was just fighting. Appellant’s classmate understood
this to mean that Appellant cut his face while practicing boxing.
The next day (Tuesday, August 16th), Appellant travelled to Tucson where he planned to
attend the University of Arizona. On Thursday, August 18th, El Paso law enforcement arrested
Nava for capital murder. Appellant learned of Nava’s arrest that same day and called the El Paso
Police Department asking to speak to a detective. Crimes Against Persons Detective Adrian Garcia
returned the call, and Appellant told Detective Garcia that he wanted to speak to law enforcement,
because he knew that Nava was under arrest and he was with Nava that “specific day.” Appellant
explained that he dropped Nava off at a park, drove off, heard a shot, but “didn’t see nothing.”
When Detective Garcia proposed a meeting, Appellant indicated he was in Tucson, and agreed it
would be “fine” to speak to a local Arizona detective. Detective Garcia thereafter provided Tucson
Police Department Detective Orozco with Appellant’s contact information so that the Tucson
Police could set up a meeting.
Detective Orozco telephoned Appellant who agreed to meet. That same Thursday night,
Appellant met with Tucson Homicide Detectives Orozco and Cheek in a hotel parking lot.
Appellant arrived there with his aunt. Detective Cheek asked if Appellant wanted to relay
information about the case. Appellant stated that he did, and Detective Cheek recorded the
conversation. Appellant recited that on Monday Nava had called, asking if they could hang out on
the afternoon of the murder. While driving around, Nava asked if Appellant could drop him off at
a park because he needed to do something. Appellant asked Nava if he was going to buy drugs,
which Nava denied. Appellant claimed he dropped Nava off around 5 p.m. and heard nothing until
seeing on the news that there was a murder in the park around 8 p.m. that evening. Appellant met
with Nava and some other friends the next morning who said goodbye before he left for Arizona.
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Appellant learned his house was broken into that same day, and he suspected Nava was involved.
The interview concluded with Appellant agreeing to speak with El Paso detectives if they came to
Tucson.
After the interview concluded, Detective Orozco learned that Texas had issued an arrest
warrant for Appellant. Tucson law enforcement thereafter arrested Appellant, impounded his
Nissan, searched the aunt’s vehicle and his dorm room. Detective Cheek discovered a handgun
holster wedged between the rear passenger seat and cargo area of the aunt’s car. In Appellant’s
dorm, law enforcement seized 14 unidentified prescription pills. While Tucson Police Department
officers were taking photographs of Appellant at the station, Appellant spontaneously told an
officer that the laceration on his forehead was caused by a car door. That same evening, the Tucson
Police were dispatched to a local bowling alley after an employee found a handgun, two
magazines, and a black cloth bag containing 99 rounds of ammunition in the women’s restroom.
Appellant appeared in an Arizona Superior Court in Pima County on Friday morning,
August 19th, for extradition proceedings related to a fugitive warrant. A bail issue was raised in
the same hearing. The State of Arizona charged Appellant with being a fugitive from justice, in
violation of an Arizona statute, and the Arizona Superior Court appointed the Legal Defender’s
Office to represent him during the extradition proceedings. Appellant ultimately waived
extradition on August 25, 2016.
Tucson Detective Orozco informed El Paso Detective Garcia of the Thursday evening
arrest and that Appellant wanted to speak to El Paso law enforcement. El Paso Detectives Garcia
and Camacho arrived in Tucson at approximately 5 p.m. on Friday, August 19, 2016. The El Paso
detectives met Appellant in a holding cell in the Pima County jail facility, introduced themselves
as El Paso Police Department Crimes Against Persons detectives, and asked Appellant if he wanted
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to speak to them. Appellant responded that he did. Detective Garcia read Appellant his Miranda
rights, which Appellant waived, including his right to counsel. Detective Garcia later testified that
he did not know about the earlier extradition hearing or that the Arizona state court appointed the
Pima County Legal Defender’s Office to represent Appellant for the extradition proceedings.
During the recorded interview, Appellant relayed several versions of what occurred at the
time Jorjorian was killed. His initial versions minimized his involvement in the murder, but as he
was confronted with additional information, he finally admitted this much: Appellant drove Nava
to the park and that Nava shot Jorjorian. Appellant also ultimately admitted that he and Nava
planned to rob Jorjorian, both he and Nava hit Jorjorian, and Nava used Appellant’s firearm to
shoot Jorjorian. Appellant disposed of that gun in a Tucson bowling alley. At trial, the State
played a DVD recording of the interview for the jury over trial counsel’s objection. Also over trial
counsel’s objection, the State offered a transcript of the video.
The jury was charged on capital murder and three lesser included offenses: murder,
aggravated robbery, and robbery. The jury returned a general verdict finding Appellant guilty of
the lesser-included offense of murder. In the jury charge, the trial court instructed the jury that
capital murder and murder both meant (1) Appellant caused Jorjorian’s death by “shooting
Christian Jorjorian with a firearm” while committing or attempting to commit “robbery;” (2)
soliciting or attempting to aid Nava to commit robbery, and in the furtherance of the robbery, Nava
shot Jorjorian with a firearm causing his death; or (3) while attempting to carry out a conspiracy
to commit robbery with Nava, and in furtherance of that purpose, Nava shot Jorjorian, causing his
death. Under the charge, capital murder required a finding that the relevant actor “intentionally”
caused the death, while the lesser murder charge required a finding that the actor “committed an
act clearly dangerous to human life[.]”
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II. ISSUES ON APPEAL
Appellant argues that the trial court erred by (1) failing to suppress the interview that law
enforcement obtained in violation of his Sixth Amendment right to counsel, (2) refusing to excise
out of the interview statements purportedly attributable to Nava, and denying his requests for jury
instructions on the (3) lesser included offense of manslaughter, and (4) corpus delicti. We address
each issue in turn.
III. NO SIXTH AMENDMENT ERROR
Appellant first argues that the trial court erred by denying his motion to suppress the
statement he provided to El Paso detectives while he was in an Arizona detention facility awaiting
extradition proceedings. Specifically, Appellant maintains his right to counsel on the Texas capital
murder charge attached when he appeared with counsel in Arizona state court on Friday morning,
and the El Paso detectives violated this Sixth Amendment right when they interviewed him without
his Arizona attorney’s consent on Friday afternoon.
A. Pretrial Motion to Suppress the Interview
Appellant moved to suppress the statement provided to El Paso detectives through a pretrial
motion. Appellant did not contest that El Paso detectives advised him of his Miranda rights at the
onset of the interview and that he waived his right to counsel. Rather, he maintained that the
waiver of rights was invalid, because he was already represented by Arizona counsel at the time
the waiver was obtained.
The State responded to the motion, arguing that the interview did not violate Appellant’s
Sixth Amendment rights because: (1) his formal prosecution for capital murder in Texas had not
commenced; (2) Arizona state court extradition proceedings did not trigger a Texas criminal
defendant’s Sixth Amendment right to counsel; (3) because the right to counsel is offense specific,
6
and Appellant’s Arizona counsel represented him only on fugitive complaint and extradition
proceedings; and (4) Appellant’s waiver of counsel at the onset of the interview was valid, whether
or not he had counsel at the time.
After a pretrial hearing, the trial court denied the motion to suppress, and later entered
findings of fact and conclusions of law. Neither party takes issue with those findings of fact, which
in relevant part conclude: (1) Appellant was arrested on a “Fugitive from Justice” complaint
stemming from an outstanding capital murder arrest warrant from El Paso, Texas; (2) on the
morning of August 19, Appellant made a preliminary appearance at a bond hearing, at which time
counsel was appointed; (3) there was no evidence that Appellant requested the appointment of
counsel; (4) later that day, El Paso Police detectives met with the Appellant in the Pima County
Jail; (5) at the time of that meeting, Appellant had not yet been formally charged by indictment in
the State of Texas; (6) the detectives did not request nor receive permission from Appellant’s
Pima County court-appointed attorney before they spoke to Appellant; and (7) the detective did
explain to Appellant before the interview began his constitutional rights pursuant to Miranda,
Appellant acknowledged that he understood those rights, and that he waived his right to remain
silent and his right to have an attorney present.
The trial court made also reached the following relevant conclusions of law:
1. Defendant voluntarily waived his 6th amendment constitutional right to counsel
during his El Paso police interview on August 19, [2016].
...
3. The State of Arizona, as the asylum state in the extradition proceedings, could
not conduct a preliminary inquiry or determination regarding the guilt or non-
guilt of the charges the Defendant could be facing in Texas.
4. The right to counsel did not attach at the Arizona extradition bond hearing
because the Defendant had not been formally charged in Texas.
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5. The El Paso detectives that interviewed the Defendant on August 19, 2016 were
not required to request permission to approach the Defendant to interview him
in the jail.
6. The El Paso detectives that interviewed the Defendant on August 19, 2016 did
not violate the Defendant’s 6th amendment right to counsel.
B. Standard of Review
Appellate courts review a trial court’s ruling on a motion to suppress under a bifurcated
standard. See State v. Arellano, 600 S.W.3d 53, 57 (Tex.Crim.App. 2020). A trial court’s findings
of historical fact are afforded almost total deference if they are reasonably supported by the record.
See id., citing Sims v. State, 569 S.W.3d 634, 640 (Tex.Crim.App. 2019). A trial court’s
determination of legal questions and its application of law to facts that do not turn upon a question
of witness credibility are reviewed de novo. See id. An appellate court will sustain the trial court’s
ruling if it is correct under any applicable theory of law that the record reasonably supports. See
id., citing State v. Ruiz, 581 S.W.3d 782, 785 (Tex.Crim.App. 2019).
Appellant does not dispute the trial court’s factual findings. He argues only that the trial
court incorrectly concluded that his Sixth Amendment right to counsel for the Texas capital murder
charge did not attach when he appeared in the Arizona Superior Court in Pima County the morning
of August 19, 2016. He maintains that he was arrested on the Texas capital murder warrant, and
his extradition was not a separate “offense” for Sixth Amendment purposes.
C. Controlling Law
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for his defence.” U.S. CONST., amend VI. The
right to counsel “attaches” with the initiation of adversarial judicial proceedings, which may be by
way of formal charge, preliminary hearing, indictment, information, or arraignment. Brewer v.
Williams, 430 U.S. 387, 398 (1977). And once the adversarial judicial process has been initiated,
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the Sixth Amendment guarantees a defendant the right to have counsel present at all “critical”
stages of the criminal proceedings. Maine v. Moulton, 474 U.S. 159, 169 (1985); Green v. State,
872 S.W.2d 717, 719 (Tex.Crim.App. 1994).
The Supreme Court has repeatedly held that the Sixth Amendment right to counsel is
offense specific. See, e.g., McNeil v. Wisconsin, 501 U.S. 171, 175 (1991); Moulton, 474 U.S. at
180. In Moran v. Burbine, for instance, after the defendant was arrested on breaking and entering
charges, he refused to waive his Miranda rights or speak to law enforcement. 475 U.S. 412, 415-
16 (1986). Unknown to the defendant, a public defender was assigned to his case, who telephoned
the police station and stated that the defendant was “represented by [an] attorney” . . . “in the event
that the police intended to place him in a lineup or question him.” See id. at 415-16. The lawyer
was told that law enforcement would not question the defendant until the following day. See id.
at 416. But less than an hour later, law enforcement brought the defendant into an interrogation
room and conducted the first of three interviews concerning a different investigation--one for a
murder in a nearby community. See id. at 417. And for those interviews, the defendant waived
his Miranda rights and confessed to the murder. See id. at 417-18.
After rejecting the defendant’s Fifth Amendment arguments, the Court held that the
officers did not violate his Sixth Amendment right to counsel because law enforcement
interrogated him before his right to counsel attached for the murder charge. See id. at 430. The
Court rejected the argument that the Sixth Amendment protects the integrity of the attorney-client
relationship regardless of whether prosecution has commenced through indictment. See id. The
Court also rejected the argument that custodial interrogations were of such great consequence that
they required a special rule. See id. at 432. In addition, the suggestion that the existence of an
attorney-client relationship, alone, triggered a Sixth Amendment right misconceived the purpose
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of the right to counsel. See id. at 430. The Sixth Amendment’s function is not “to wrap a protective
cloak around the attorney-client relationship for its own sake” or to “protect a suspect from the
consequences of his own candor.” Id. The purpose of the right is to assure that in a criminal
prosecution, “the accused shall not be left to his own devices in facing the prosecutorial forces of
organized society,” and “to assure that the prosecution’s case encounters the crucible of
meaningful adversarial testing.” Id. (internal quotes omitted).
In the past, the Court had also held that once an accused requested the assistance of counsel
based on the Sixth Amendment, the police could not initiate any questioning or attempt to induce
a waiver of the right to counsel. Michigan v. Jackson, 475 U.S. 625, 635-636 (1986). Under that
bright line rule, “if police initiate interrogation after a defendant’s assertion, at an arraignment or
similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that
police-initiated interrogation is invalid.” Id. at 636. The Court abandoned this approach, however,
in Montejo v. Louisiana, 556 U.S. 778 (2009). Factually, the defendant in Montejo was appointed
counsel at a preliminary hearing. Id. at 780. The police, unaware that counsel had been appointed
for Montejo, and after reading him his Miranda rights, persuaded him to accompany them to help
locate the murder weapon. At that time, Montejo wrote an inculpatory letter of apology to the
victim's widow, which was admitted at trial. Id. at 782. On appeal, he claimed that under Jackson,
the appointment of counsel at an arraignment should be treated as an invocation of the Sixth
Amendment right to counsel at every subsequent critical stage in the prosecution.
The Court rejected that approach, however, noting that “it would be completely unjustified
to presume that a defendant’s consent to police-initiated interrogation was involuntary or coerced
simply because [the defendant] had previously been appointed a lawyer.” Id. at 792. Instead, once
the right to counsel has attached, “a defendant who does not want to speak to the police without
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counsel present need only say as much when he is first approached and given the Miranda
warnings.” Id. at 794. “At that point, not only must the immediate contact end, but any ‘badgering’
by later requests is prohibited.” Id. at 787. The Court reached this conclusion based on the
marginal benefits of a Jackson bright-line rule, balanced against hindering “society’s compelling
interest in finding, convicting, and punishing those who violate the law.” Id. at 793. Additionally,
the Court noted the “substantial other, overlapping measures to exclude them.” Id. at 794, citing
Miranda v. Arizona, 384 U.S. 436, 473-74, (1966) (requirement to inform suspect of the right to
counsel); Edwards v. Arizona, 451 U.S. 477, 484-85, (1981) (once counsel is requested, suspect is
not subject to further interrogation unless he or she initiates the same); Minnick v. Mississippi, 498
U.S. 146, 153 (1990) (no subsequent interrogation may take place until counsel is present,
“whether or not the accused has consulted with his attorney.”).
Therefore, a court can no longer presume that a waiver of a right to counsel executed after
the right to counsel has attached is invalid. An accused must make a clear assertion of the right to
counsel when officers initiate interrogation and in that case no interrogation should take place. A
subsequent waiver would be invalid if it follows an unequivocal election of the right to counsel.
Montejo, 556 U.S. at 797; Pecina v. State, 361 S.W.3d 68, 78 (Tex.Crim.App. 2012) (“Distilled
to its essence, Montejo means that a defendant’s invocation of his right to counsel at his [Texas
Code of Criminal Procedure] Article 15.17 hearing says nothing about his possible invocation of
his right to counsel during later police-initiated custodial interrogation.”).
D. Application
From these cases, the parties first argue over whether the right to counsel attached at the
extradition proceeding, such that it would extend to Appellant’s questioning later that afternoon
on the murder investigation. The extradition proceeding is necessarily limited and would not turn
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on Appellant’s guilt on the murder charge. See Rogers v. Boies, 478 P.2d 92, 93 (Ariz. 1970) (en
banc) (providing that “the sufficiency of the information charging the offense must be tested in the
demanding state”). Rather, Appellant’s extradition attorney could have civilly challenged only
whether (1) the extradition documents were in order; (2) Appellant was charged with a crime in
Texas; (3) Appellant was the person named in the request for extradition; and (4) Appellant was a
fugitive, meaning he left Texas for Arizona.1 See California v. Superior Court of California, San
Bernardino County, 482 U.S. 400, 409 (1987); Applications of Oppenheimer, 389 P.2d 696, 700
(Ariz. 1964) (en banc). And in Texas v. Cobb, the Supreme Court reiterated that it “meant what it
said” when it held that the Sixth Amendment right to counsel was offense specific and does not
extend to crimes “closely related factually” to the charged offense. 532 U.S. 162, 165 (2001),
citing McNeil, 501 U.S. 171.
But we need not reach the issue of whether the right to counsel for the Texas murder charge
attached at the time of the Arizona extradition proceeding, because even if the right to counsel
attached, Appellant freely and voluntarily spoke with the El Paso detectives, never mentioning his
extradition counsel, nor invoking the right to counsel. One of our own cases makes that point. In
Flores v. State, 299 S.W.3d 843 (Tex.App.--El Paso 2009, pet. ref’d), the defendant committed a
murder in El Paso and fled to Mexico. He was extradited from Mexico back to Texas and had
counsel for that extradition proceeding. Upon his return to Texas, detectives advised the defendant
of his Miranda rights, and after waving those rights, he gave a full confession of the crime.
As in this case, the defendant in Flores claimed the assignment of counsel at the extradition
proceeding automatically precluded any questioning by the police unless counsel was present. Id.
1
ARIZ.REV.STAT.ANN. § 13-3845 (2017) (indicating that a warrant of execution shall issue if the accused “fled from
the state”). For instance, Appellant’s Arizona attorney could have filed a civil petition for writ of habeas corpus that
argued the warrant of extradition did not comply with Arizona law because the fingerprints or photograph identifying
Appellant in the Texas complaint were not made on a proper affidavit. See ARIZ.REV.STAT.ANN. § 13-3845(B) (2017).
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at 852. Noting the change in the law following Montejo, this Court rejected that argument, instead
looking to voluntariness of the Sixth Amendment waiver. Id. Noting that there was no evidence
in the record that Flores was “coerced, badgered, or tricked” into waiving his right to counsel, we
upheld the denial of a suppression motion for the confession.
The record here reads similar to that in Flores. First the obvious. In both cases the police
interviewed the accused after counsel had been appointed for extradition proceedings. And as in
Flores, the interview here began with the detective advising Appellant of his Miranda rights,
including his right to counsel, and Appellant agreed that he understood and voluntarily waived his
rights. Similarly, Appellant does not contest the trial court’s finding that he voluntarily waived
his Miranda rights, including his Sixth Amendment right to counsel, during his interview with the
El Paso detectives. He did not tell the detectives he already had counsel, and it was Appellant who
first actively reached out to the detectives to initiate an interview (and then later confirmed with
the Tucson police that he would speak with the El Paso detectives). Under Montejo, even if a
Sixth Amendment right to counsel had attached to his Texas capital murder charge at the time of
the interview, Appellant validly waived the right. See Montejo, 556 U.S. at 792-94; Patterson v.
Illinois, 487 U.S. 285, 290 (1988) (concluding that law enforcement are not barred from initiating
a meeting with a post-indictment defendant who does not exercise his right to have counsel
present).
Appellant responds that the extradition in Flores was complete, and the detectives in that
case would not have any way to even learn of the identity of the Mexican counsel. While these
are distinctions, they are without a meaningful difference. The essence of Appellant’s argument
is that because the extradition in Arizona was still active, we must assume Appellant requested
counsel, which acts as a bar to any knowing waiver of the right to counsel. See Edwards, 451 U.S.
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at 484-85 (once counsel is requested, suspect is not subject to further interrogation unless he or
she initiates the same). This claim, however, sounds much like the bright-line rule, or at least the
presumption, that the Court rejected in Montejo. Moreover, the trial court here expressly found
that there was no evidence that Appellant had ever requested the appointed counsel for the
extradition hearing. Finding no meaningful distinction between this case, and Flores, we overrule
Issue One.2
IV. NO BRUTON OR CONFRONTATION ERROR
Appellant next argues that the trial court erred by declining to redact that part of the
interview where the detectives confronted Appellant with Nava’s claim that Appellant was the
shooter. Appellant presented this as a Bruton3 error, that also implicated his Sixth Amendment
right to confrontation. The State responds that that Bruton was not implicated at Appellant’s trial,
and the trial court did not violate Appellant’s confrontation rights, because the statements were not
offered for their truth. We agree with the State and conclude that the issue does not warrant relief.
A. Appellant’s Interview with El Paso Detectives
During his interview with the El Paso detectives, Appellant provided several versions of
what occurred on the night that Jorjorian was killed that changed as the detective tested and
confronted his story. He first claimed that Nava asked Appellant to drop him off at the park on
Monday night. Appellant drove off after Nava exited the vehicle. Appellant heard a bang as he
drove away, but continued on to his friend’s house. Appellant stated that he did not “see anything,
but [he] heard the bang.”
2
Appellant correctly points out that the Flores court also buttressed its decision by concluding that any error in
admitting that confession was harmless error. Nonetheless, the court did reach the merits of the violation itself.
3
Bruton v. United States, 391 U.S. 123 (1968)
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But then the detectives began breaking down his story with a series of techniques, including
telling Appellant that “[w]e live in a world nowadays where nothing goes unseen,” that residences
in the neighborhood where the murder occurred likely had security cameras, that Appellant needed
to be honest, and that DNA evidence might indicate who struck who. Germane to Appellant’s
complaint here, the detectives also confronted Appellant with what Nava claimed:
Detective Garcia: We know the truth, Okay? And Marco [Nava] did get arrested.
Appellant: Okay.
Detective Garcia: Okay?
Appellant: (Nodding.)
Detective Garcia: Last night.
Appellant: Okay.
Detective Garcia: He told us everything.
Appellant: Okay.
Detective Garcia: All right?
Appellant: I’m telling you everything I know.
Detective Garcia: If you want to go down for this on your own, that’s your choice,
okay? He’s saying it’s you.
Appellant: I did not shoot anyone.
Detective Garcia: I’m just --
Appellant: I know.
Detective Garcia: He’s saying it’s you.
Appellant: I’m sure. I’m sure.
Detective Garcia: You’re saying it’s him.
The interview continued:
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Detective Garcia: He’s [Nava] saying he saw you.
Appellant: No. I did not kill anyone. I did not shoot anyone.
By the end of the interview, and after having offered different versions of what happened,
Appellant eventually admitted that he and Nava were at the park to steal drugs from Jorjorian.
After Jorjorian got into the front seat of Appellant’s parked car, Nava (who was seated in the rear
seat) and Appellant both hit Jorjorian. Jorjorian ducked and got out of the vehicle, and Nava
followed. Nava shot the gun and got back into Appellant’s car. Appellant drove Nava home, and
continued to his friend’s house. Nava kept the shell casing ejected from the gun. Appellant also
admitted that his gun--a black Glock .38--was used to shoot Jorjorian. Appellant informed the
detectives that he threw the firearm away by a bowling alley in Tucson.
B. Pretrial Hearings
Prior to trial, Appellant filed a motion in limine to preclude any reference to what he
El Paso detectives claimed that Nava told law enforcement about the murder. Appellant urged that
the trial court would violate his federal confrontation rights and cited to Bruton v. United States.
During a hearing on the motion, the State proposed that the trial court provide a limiting jury
instruction that law enforcement’s statements to Appellant concerning Nava were not presented
for their truth, but for evaluating Appellant’s response, and that officers may use deception during
interviews.4 The trial court deferred ruling on the motion.
Before the State played the video of Appellant’s interview at trial, it re-asserted that any
reference to a purported statement by Nava was offered to show: (1) why law enforcement
investigated Appellant (i.e. how Appellant became a suspect and was interviewed) and (2)
4
The State noted that law enforcement told Appellant during the interview that surveillance cameras captured the
shooting, which was not true.
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Appellant’s reaction after law enforcement revealed that they knew information about the murder.
Appellant’s counsel responded that she could not cross-examine Nava’s purported statement that
“Marcelo did it.” The trial court admitted the video without redaction, noting that the
Confrontation Clause does not bar the use of testimonial statements for purposes other than
establishing the truth of the matter.
C. Trial Proceedings
The State’s theory of the case was not that Appellant necessarily shot Jorjorian. Rather,
the State based its case on the law of parties. In opening statement, the State admitted that the
evidence would not conclusively demonstrate that Appellant shot Jorjorian. Instead, the State said:
“We don’t know. We don’t know which one of them actually pulled the trigger that killed
Christian Jorjorian.” The State suggested that Nava arranged the robbery, while Appellant helped
plan the robbery and assisted through use of his car and loaded gun.5 After both Appellant and
Nava assaulted Jorjorian, “the defendants got a gun, pointed it at him, and shot him once in the
chest.”
Appellant’s counsel responded during her opening statement that: (1) law enforcement had
not properly investigated the murder at the time they interviewed Appellant; and (2) during the
interview, detectives psychologically manipulated Appellant into reciting the information they
wanted to hear. Counsel told the jury “you’ll get to see this video,” where law enforcement “push”
and “prod” Appellant until he provides a statement to “please them[.]” Counsel told the jury that
they “will see . . . that that interview is a study in how to manipulate a confession out of somebody,”
a “study in psychological manipulation.”
5
The State asked the jury to “keep this in mind, how does Marco Nava get [Appellant’s] gun before it happens? And
how does Marco Nava return his gun to him before he goes to college?” The State followed in the next sentence by
arguing that “[w]ithout a doubt, the evidence is going to prove to you that [Appellant] was an accomplice; that he was
a party to capital murder.”
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When the State played the DVD recording of Appellant’s interview with El Paso
detectives, the trial court overruled counsel’s renewed objections to the evidence.
D. Limiting Instruction
After the defense rested, the trial court instructed the jury:
During the presentation of evidence, references were made to statements made by
Marco Nava. However, these statements were not admitted as evidence to show
what he purportedly said was true. You are instructed that you may not rely or
consider these statements as evidence of guilt of the [d]efendant.
During closing argument, Appellant’s counsel reminded the jury of the instruction that it may not
consider a statement that Nava may or may not have made as evidence of Appellant’s guilt.
Counsel cautioned that the jury may not speculate about what Nava might have told law
enforcement, and the only evidence presented in the DVD recording of Appellant’s interview were
Appellant’s words.
E. No Bruton Violation
In Bruton v. United States, the Supreme Court held that, at a joint trial of a defendant and
his co-defendant, a defendant’s confrontation rights are violated if the government presents a
statement made by the co-defendant implicating the other defendant when the co-defendant does
not testify (and therefore is not subject to cross-examination). 391 U.S. 123, 136 (1968) (also
holding that a limiting jury instruction does not cure the error). Strictly speaking, Bruton is not
applicable to this appeal. Appellant and Nava were not co-defendants tried jointly. We thus
overrule Appellant’s issue to the extent that he alleges a Bruton violation. Appellant, however,
clarifies that the phrase “Bruton violation” was used as a shorthand below for a Confrontation
Clause violation, which we address next.
18
F. No Violation of Confrontation Rights
Appellant separately argues that the trial court violated his general confrontation rights by
admitting the statement, when he had no opportunity to cross-examine Nava.
1. Controlling law
The Sixth Amendment’s Confrontation Clause provides the accused in criminal
prosecutions “the right . . . to be confronted with the witnesses against him.” U.S. CONST.
amend. VI. The Clause was included in our Constitution to address the practice in England of
reading in court in lieu of live testimony the pretrial examinations of suspects and statements of
government officials. See Crawford v. Washington, 541 U.S. 36, 43 (2004). “The principal evil
at which the [Confrontation] Clause was directed was the civil-law mode of criminal procedure,
[and] particularly the use of ex parte examinations as evidence against the accused.” Id. at 50.
The Confrontation Clause accordingly prohibits the introduction of testimonial statements of a
non-testifying witness unless the declarant is unavailable and the defendant had a prior opportunity
to cross-examine him. See id. at 59.
But only “testimonial statements” cause a declarant to be a “witness” under the
Confrontation Clause. Davis v. Washington, 547 U.S. 813, 820 (2006). “It is the testimonial
character of the statement that separates it from other hearsay that, while subject to traditional
limitations upon hearsay evidence, is not subject to the Confrontation Clause.” Id. To distinguish
testimonial statements from those that are not, courts look to the “primary purpose” of the
statement. So, for instance, when the State seeks to admit a 911 recording (which contains the out
of court statement of the person making the call), the primary purpose for many of the 911
operator’s questions is to respond to an “ongoing emergency,” and not to create a record for trial.
Id. at 822. Because those kind of questions and answers would not be testimonial, they do not
19
implicate the Confrontation Clause. Id. Similarly, a police officer might recount the dying
declaration of a victim if the statement was elicited to assist the police to meet an ongoing
emergency. Michigan v. Bryant, 562 U.S. 344, 358-59 (2011). But conversely, “[s]tatements
taken by police officers in the course of interrogations,” would always qualify as testimonial
statements. Crawford, 541 U.S. at 53 (a “recorded statement, knowingly given in response to
structured police questioning, qualifies under any conceivable definition.” ). To decide whether a
statement is testimonial, “standard rules of hearsay, designed to identify some statements as
reliable, will be relevant.” Bryant, 562 U.S. at 358-359. “In the end, the question is whether, in
light of all the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was
to ‘creat[e] an out-of-court substitute for trial testimony.’” Ohio v. Clark, 576 U.S. 237, 245
(2015), quoting Bryant, 562 U.S. at 358.
An appellate court determines de novo whether a statement is testimonial or non-
testimonial. See Wall v. State, 184 S.W.3d 730, 742 (Tex.Crim.App. 2006), citing Lilly v. Virginia,
527 U.S. 116 (1999).
2. Application
The rub here is that the State used the supposed product of an interrogation of one defendant
to confront another defendant’s version of events. We conclude that the primary purpose of
repeating Nava’s supposed statement was not as an out-of-court substitute for trial testimony, but
rather it was part of the process of interrogation of Appellant to test his claimed version of events.
Appellant himself raised the issue of the propriety of the interview, claiming that he was
“psychologically manipulated” into repeating desired language during the interview. He also
challenged the adequacy of the detectives’ investigation at the time of the interview. Even
assuming that Nava provided a testimonial custodial statement, the trial court did not violate
20
Appellant’s confrontation rights because the statements were admitted not for the truth of the
matter asserted, but rather to show (1) why law enforcement investigated Appellant; and (2)
Appellant’s reaction after detectives revealed they knew information about the murder.
At least two prior decisions of higher courts tell us that a statement offered not for the truth
of the matter asserted does not implicate the Confrontation Clause. In Del Carmen Hernandez v.
State, the Court of Criminal Appeals concluded that testimonial statements from a co-defendant’s
custodial interrogation were properly admitted for impeachment purposes and not to prove the
truth that Appellant committed the crime. See 273 S.W.3d 685, 689 (Tex.Crim.App. 2008).
During a trial for capital murder, inmate witnesses testified that Appellant’s co-defendant talked
to them and took responsibility for the murder. See id. at 687. On rebuttal, the State called a
detective to read portions of the unavailable co-defendant’s custodial statement in which she
denied involvement in the homicide. See id. The trial court admitted the testimony over trial
counsel’s objection on confrontation grounds and provided a limiting instruction. See id.
The Court of Criminal Appeals explained the testimonial custodial interrogation of a co-
accused was used for a non-hearsay purpose--impeaching credibility. See id. at 688. The
defendant placed the credibility of her co-defendant at issue when she called inmate witnesses to
testify to prior statements the co-defendant made. See id. at 689. The court noted that the trial
court provided a limiting instruction, and the State did not refer to the statement as substantive
evidence during argument. See id. The Del Carmen Hernandez decision relied upon Supreme
Court authority indicating that “[t]he [Confrontation] Clause . . . does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter asserted.” See id., citing
Crawford, 541 U.S. at 59 n.9.
21
Specifically, in Tennessee v. Street, the defendant in a murder trial claimed that his
confession was coerced, because law enforcement read him an accomplice’s statements and
directed him to “say the same thing.”6 471 U.S. 409, 411 (1985). The State called the sheriff to
read the accomplice’s statement to rebut Street’s claim and demonstrate the inconsistencies
between the statements. See id. at 411-412. The trial court admitted the statement and provided a
limiting instruction. See id. at 412. The Court determined that the State did not introduce the
confession to prove the truth of its content, but rather to rebut Street’s testimony that his confession
was coerced, and the evidence was not hearsay. See id. at 413 (noting the case was “significantly”
different than the Court’s prior confrontation cases where the trial court admitted hearsay as
substantive evidence against the defendant). The non-hearsay aspect of the confession--the
admission to prove what happened when respondent confessed--raised no Confrontation Clause
concerns. See id. at 414. The Court emphasized that the State’s most important piece of
substantive evidence was respondent’s confession. See id. at 415. After respondent testified that
his confession was a coerced imitation, the focus turned to the State to rebut the claim. See id. If
the State was denied the opportunity to present the accomplice’s testimony in rebuttal, the jury
would have been impeded in evaluating the truth and “handicapped in weighing the reliability of
the confession.” Id. The Court found this result at odds with the mission of the Confrontation
Clause--“to advance the accuracy of the truth-determining process in criminal trials.” See id.,
citing Dutton v. Evans, 400 U.S. 74, 89 (1970).
As in Street, during Appellant’s trial, the State needed to address Appellant’s claim to the
jury that El Paso detectives “had their minds made up before they ever spoke to” Appellant, so
they “manipulate[ed] a confession” out of him. Thus, the trial court properly admitted the evidence
6
Although Tennessee v. Street pre-dates Crawford v. Washington, the decision was cited with approval in Crawford.
See Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004), citing Tennessee v. Street, 471 U.S. 409, 414 (1985).
22
to show how law enforcement came to suspect and interview Appellant. See id. at 414. The State
also needed to show how Appellant’s story of events morphed from he did not “see anything” to
the point of confessing to most details of the crime. The several challenges that the detectives used
to break down Appellant’s story form a part the fabric of that process.7
We also find additional factors significant here. The State’s case never hinged on who shot
Jorjorian. Accordingly, the instruction that the jury should consider the truth of Nava’s statement
fit hand-in-glove with the State’s theory of the case that Appellant could be guilty even if Nava
pulled the trigger. Nor did the State cite to this portion of the interview during opening statement
or closing argument, and the trial court provided a limited instruction that trial counsel emphasized
during closing argument. See Luquis v. State, 72 S.W.3d 355, 366-67 (Tex.Crim.App. 2002)
(noting that appellate courts presume the jury followed instructions and will not find constitutional
error unless a reviewing court concludes that a reasonable jury was actually confused by the
charge). Moreover, cross-examination of Nava would be ineffective to undermine how the State
was using the statement. See Street, 471 U.S. at 414 (noting that confrontation rights were not
implicated, in part, because cross-examination of respondent’s accomplice would be ineffective to
undermine the limited purpose of demonstrating that Appellant’s confession was not coerced).
As such, we conclude that the trial court did not err by denying Appellant’s motion to
preclude the portion of the interview containing Nava’s purported statements. We overrule Issue
Two.
7
The State’s ability to rebut trial counsel’s allegations of “psychological manipulation” was a focus of trial because
the jury was instructed that it could only consider Appellant’s confession if each juror agreed that the State proved,
beyond a reasonable doubt, that Appellant made the statement freely and voluntarily.
23
V. NO ERROR FOR FAILING TO PROVIDE MANSLAUGHTER INSTRUCTION
In his third issue, Appellant argues that the trial court erred when it failed to instruct the
jury on the lesser included crime of manslaughter. Appellant maintains that a jury could have
found him guilty of manslaughter based on the evidence that he had a gun in his back seat that was
accessible to Nava. The State responds that the record would not support a finding that Appellant
committed reckless conduct that caused the actual shooting of the firearm that killed Jorjorian. We
agree and conclude that the issue does not warrant relief.
A. Controlling Law
Texas employs a two-part analysis to determine whether a defendant is entitled to an
instruction on a lesser-included offense. See Roy v. State, 509 S.W.3d 315, 317 (Tex.Crim.App.
2017). The court first determines whether the offense in the requested instruction is a lesser-
included offense of that charged in the indictment. See id. If so, the court decides whether a jury
could rationally find that, if the defendant is guilty, he is guilty of only the lesser-included offense,
based on the admitted evidence. See id.
We do not address the first prong of the analysis here, because the State and Appellant
agree that the first prong is satisfied. As to the second element, an instruction on a lesser-included
offense is required only if more than a scintilla of evidence establishes that “the lesser-included
offense is a valid, rational alternative to the charged offense.” Id. at 317, quoting Goad v. State,
354 S.W.3d 443, 446 (Tex.Crim.App. 2011). Although little evidence is needed to warrant an
instruction, the relevant evidence must affirmatively “raise[ ] the lesser included offense and
rebut[ ] or negate[ ] an element of the greater offense.” Roy, 509 S.W.3d at 317, quoting Cavazos
v. State, 382 S.W.3d 377, 385 (Tex.Crim.App. 2012).
24
A person commits the offense of manslaughter by recklessly causing the death of an
individual. TEX.PENAL CODE ANN. § 19.04(a). A person acts recklessly, or is reckless, with
respect to circumstances surrounding his conduct or the result of his conduct when he is aware of
but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the
result will occur. TEX.PENAL CODE ANN. § 6.03(c). Even assuming that manslaughter is a lesser
included offense of capital murder as charged in Appellant’s indictment, we perceive two problems
with Appellant’s claim. First, the conduct that he claims shows recklessness is not the same
conduct that caused the death of Jorjorian. Second, the record is lacking in the evidence of
recklessness upon which Appellant’s argument is based.
B. The Claimed Recklessness was not the Conduct that Caused the Death
The culpable mental states for both murder and manslaughter relate to the result of the
conduct--the causing of the death. See Schroeder v. State, 123 S.W.3d 398, 399 (Tex.Crim.App.
2003) (en banc). To commit manslaughter, a person must recklessly cause the death of another.
See id., citing TEX.PENAL CODE ANN. § 19.04 (indicating that, pursuant to Texas Penal Code
Section 6.03(c), a person acts recklessly when he is “aware of, but consciously disregards a
substantial and unjustifiable risk” that the result will occur). The “reckless” conduct relied upon
in support of the requested manslaughter offense must still be part of the conduct in the greater,
charged offense--here murder. Our Court made that point in Apilado v. State, No. 08-16-00358-
CR, 2018 WL 3629371 (Tex.App.--El Paso July 31, 2018, pet. ref’d) (not designated for
publication).
In Apilado, the defendant shot and killed his father. He claimed he did so while
sleepwalking. After being convicted of murder, he complained on appeal that the trial court erred
in omitting a lesser included charge for manslaughter. He argued that the evidence supported
25
recklessness in that he was aware: (1) of his propensity to sleepwalk and act violently while
sleepwalking, (2) he had not slept for four days before the shooting, and (3) he had obtained a rifle
and kept it in his home after police had previously confiscated a pistol that Appellant had used to
strike his father. 2018 WL 3629371, at *7. This Court concluded that evidence did not, however,
support submission of the lesser included offense:
Of [Apilado’s] itemized evidence, only [his] possession of the rifle within the home
constitutes conduct on his part. However, that conduct, even if deemed reckless, is
not the same conduct that caused the victim’s death. The victim’s death was caused
by [Apilado] shooting him in the head with the rifle. Consequently, [Apilado’s]
alleged reckless conduct (keeping a rifle in the home) is not the same as the conduct
that caused his father’s death (using a rifle to shoot his father in the head), nor was
the alleged reckless conduct included within the facts necessary to prove the
conduct and offense charged in the indictment, murder.
2018 WL 3629371, at *7; see also Roy, 509 S.W.3d at 319 (“But a defendant need not be aware
at the moment the result occurs if he can show that he consciously disregarded the risk of the result
and the result came from the same conduct.”).
For much the same reason, we conclude the conduct that Appellant points to (having a gun
in the vehicle) is too removed from the conduct that caused the death. Jorjorian died either because
Nava or Appellant shot him. Appellant’s argument under this point assumes that Nava pulled the
trigger. But that conduct is distinct and different from how Nava might have come to have a gun
in his possession. And given the jury was charged on the law of parties--where Appellant can be
liable for the conduct of Nava--the critical inquiry would be Nava’s mens rea at the time of the
shooting. And there is no evidence that Nava acted recklessly when he shot Jorjorian. For
instance, Appellant did not explain that Nava pointed a gun at Jorjorian and it went off accidentally
during a struggle. See Ross v. State, 861 S.W.2d 870, 875 (Tex.Crim.App. 1992) (en banc)
(holding that a defendant who held a loaded, cocked gun at a victim’s head when it accidentally
discharged acted recklessly). Rather, the evidence pointed to the use of a deadly weapon fired at
26
close range which presumes an intent to kill. See Apilado, 2018 WL 3629371, at *4 (collecting
cases). A statement overheard at the scene (“I’m going to shoot you n____! I’m going to shoot
you”) supports that presumption. Measured by the act that caused the death, the murder was
intentional and not the result of recklessness.
C. There was no Evidence of Recklessness in Storing the Gun
Moreover, we also conclude that there was no evidence presented at trial that Appellant
acted recklessly in allowing Nava to obtain the gun. There was no evidence of where and how
Appellant stored the weapon in the vehicle. That is, there was no evidence as to whether he had it
safely stowed in the glove compartment, or in open view to his passengers. In fact, Appellant did
not state during the interview that he kept a firearm in his vehicle. Nor is there any detail about
how Nava came to know of or obtain the gun. Appellant never told law enforcement how Nava
came to be in possession of the firearm that shot Jorjorian, other than to respond “yes,” when
Detective Garcia questioned, “But it’s your gun.”8 Without any of these critical details, there is
no inference of recklessness that a jury could have gleaned from only the fact that Nava had the
gun in his possession, and apparently returned it to Appellant after the shooting.
We thus conclude that the trial court did not err by denying Appellant’s request for a
manslaughter instruction, and we overrule the issue.
8
For instance, Nava could have taken the firearm from Appellant’s residence earlier in the day--or any point earlier
in time--and had the firearm in his pants’ pocket the entire day of the murder. Appellant told Detective Garcia that
Nava was a “little brother” and the two were “really close,” so a jury could infer that Nava spent time at Appellant’s
home and could have accessed the weapon there.
27
VI. NO ERROR BY DENYING REQUEST FOR CORPUS DELICTI INSTRUCTION
In his final issue, Appellant maintains that the trial court should have provided a corpus
delicti instruction because the State presented no evidence of a robbery aside from his interview.9
The State responds that Appellant has not shown that the trial court erred by denying his request,
because some independent evidence tended to show that a robbery was committed. We agree and
conclude that Appellant has not shown that he is entitled to relief.
A. Corpus Delicti
The corpus delicti rule requires some evidence aside from an accused’s confession,
considered in the light most favorable to the jury’s verdict, showing that a crime actually occurred.
See Salazar v. State, 86 S.W.3d 640, 645 (Tex.Crim.App. 2002); McDuff v. State, 939 S.W.2d
607, 614 (Tex.Crim.App. 1997) (en banc). Historically, the corpus delicti rule guarded against the
spectacle created when a murder victim suddenly reappears after a self-confessed-murder-
defendant was convicted and executed. Salazar, 86 S.W.3d at 644, citing ROLLIN M. PERKINS &
RONALD M. BOYCE, CRIMINAL LAW 142-150 (3d ed. 1982). In our current era, the rule protects
mentally infirm individuals who confess to an imaginary crime and people who give an
extrajudicial confession because of official coercion. See Bible v. State, 162 S.W.3d 234, 247
(Tex.Crim.App. 2005).
9
After the trial court entered judgment, Appellant filed the following proposed corpus delicti jury instruction:
Additionally, a person cannot be convicted of a crime based only on his uncorroborated, out-of-
court statements. You may only rely on the defendant’s out-of-court statements if you find there is
other evidence which, considered alone or with these statements, shows that the crime charged
occurred. This other evidence does not have to show that the defendant was the one who committed
the offense. But if you do not believe that any evidence other than the defendant’s out-of-court
statements shows that a capital murder, murder, or robbery occurred, you will find the defendant
“not guilty.”
28
The corpus delecti rule was not intended to ensure that confessions are corroborated in
specific detail or to ensure that the defendant does not falsely confess to a crime that actually
occurred. Salazar, 86 S.W.3d at 644 (noting that other constitutional rules and statutes concerning
the voluntariness of a confession guard against an innocent person confessing to a crime he did
not commit), citing Self v. State, 513 S.W.2d 832, 836-37 (Tex.Crim.App. 1974). “This other
evidence need not be sufficient by itself to prove the offense: ‘all that is required is that there be
some evidence which renders the commission of the offense more probable than it would be
without the evidence.’” Rocha v. State, 16 S.W.3d 1, 4 (Tex.Crim.App. 2000), quoting Williams
v. State, 958 S.W.2d 186, 190 (Tex.Crim.App. 1997) (en banc).
A person commits robbery when, in the course of committing theft and “with intent to
obtain or maintain control of the property,” he “(1) intentionally, knowingly, or recklessly causes
bodily injury to another, or (2) intentionally or knowingly threatens or places another in fear of
imminent bodily injury or death.” TEX.PENAL CODE ANN. § 29.02(a). A person commits theft
when he “unlawfully appropriates property with the intent to deprive the owner of property.”
TEX.PENAL CODE ANN. § 31.03(a). Appellant’s claim here is that there was no corroborating
evidence of a robbery (a component of the felony murder charge), and thus the jury should have
been instructed on the corpus delecti rule which would have allowed it to not consider the
confession.
B. Jury Charge Error
A reviewing court’s first duty in analyzing a jury-charge issue is to determine whether error
exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005) (en banc). If the court finds
error, it analyzes the error for harm. See id. Jury charge error requires reversal when the defendant
properly objected to the charge and the error resulted in “some harm” to his rights. See id., citing
29
Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (en banc) (op. on reh’g). When a
defendant did not object to a charge, reversal is not warranted unless the record shows egregious
harm to the defendant. See Ngo, 175 S.W.3d at 743, citing Almanza, 686 S.W.2d at 171.
Although Appellant objected to the exclusion of this instruction, we need not reach the
issue of harm, because we conclude the trial court did not err in refusing the instruction. See
Baldree v. State, 784 S.W.2d 676, 686 (Tex.Crim.App. 1989) (en banc) (indicating that “a trial
judge need not instruct the jury on corroboration when the corpus delicti is established by the
evidence”). As explained below, independent evidence apart from Appellant’s interview renders
the corpus delicti of robbery more probable than it would be without the evidence. Rocha, 16
S.W.3d at 4.
C. Is Corroboration of the Murder Enough?
Appellant’s argument focuses on whether the record contains any corroboration of the
robbery component of the felony murder charge, agreeing that there is certainly corroborating
evidence of a murder. The State responds that in a murder case, it need only corroborate a murder,
here by evidence that Jorjorian died from a gunshot wound to the chest. See Nisbett v. State, 552
S.W.3d 244, 264 (Tex.Crim.App. 2018) (“[T]he corpus delicti of murder is established if the
evidence shows the death of a human being caused by the criminal act of another, and the State is
not required to produce and identify the body or remains of the decedent.”) (internal quotes
omitted). The question of whether the evidence had to corroborate the murder or both the robbery
and murder is potentially answered by Miller v. State, 457 S.W.3d 919, 927 (Tex.Crim.App.
2015). In Miller, the defendant confessed to four instances of aggravated sexual assault, but the
State had corroborating evidence only for one of the counts. The court of appeals reversed guilty
verdicts on three counts, based on the corpus delecti rule. The Texas Court of Criminal Appeals
30
refused the State’s argument to drop the corpus delecti rule altogether, but it did create an exception
--“Texas criminal law does recognize a closely related crimes exception to the corpus delicti rule
in cases with an extrajudicial confession, and it is implicated when the temporal connection
between the offenses confessed to is sufficiently close that introduction of the confession does not
violate the purposes of the corpus delicti rule.” Id. at 929.
The robbery and murder were closely related in time and circumstance. But we need not
decide if that exception applies here, however, because we conclude there is sufficient
corroborating evidence of the robbery, if corroboration of that aspect of the crime is required.
D. Independent Evidence of Robbery
The record contains evidence corroborating Appellant’s statement that he and Nava were
intending to steal Jorjorian’s drugs, and that in the process Jorjorian was killed. Nava’s text
messages corroborated that there was to be a drug sale transaction in the park that night. Hours
before he was murdered, Jorjorian and Nava exchanged text messages concerning Nava purchasing
two syringes of liquified THC, or wax, from Jorjorian. But the evidence suggested something more
than a simple purchase transaction. A witness heard a car pull up and yelling from within the
vehicle. The witness next heard a car door open and a person shout, “I’m going to shoot you
n____! I’m going to shoot you.” The car then drove away. Another witness saw a small SUV
with an occupant and a young driver who proceeded oddly fast and failed to stop at a stop sign in
the neighborhood. Witnesses found Jorjorian lying on the pavement, shot in the chest, with two
syringes next to him filled with greenish liquid.
The record therefore contained evidence of an intended drug transaction that went awry.
The circumstances of it going wrong were consistent with a robbery. Both Appellant and Jorjorian
had body marks consistent with a fight. Autopsy photographs detailed abrasions and bruising to
31
Appellant’s left earlobe, bruising to his right hand and a cut to his finger. Although evidence may
have supported other explanations for the injuries to Jorjorian’s face and extremities, the jury was
free to believe and give weight to the testimony that they were caused by assault. See Sharp v.
State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986) (en banc). Appellant gave inconsistent
statements as to how he suffered his injuries. And the injuries to both Appellant and Jorjorian
would be consistent with a forceful attempt to steal the drugs. The record also contains
corroboration of the gun that Appellant described as being used by Nava. Use of the gun itself is
consistent with an attempt to commit robbery instead of a simple drug-sale transaction.
A defendant does not have to complete the theft to be guilty of robbery. In Wolfe v. State,
a defendant convicted of capital murder argued that the evidence was insufficient to support his
underlying felony of robbery when the victim was found with a coin in her purse and coins on the
floor of her home. See 917 S.W.2d 270, 275 (Tex.Crim.App. 1996). Finding the evidence
sufficient, the Court of Criminal Appeals noted that “[p]roof of a completed theft is not required
to establish a robbery,” and the intent to steal may be inferred from circumstantial evidence. Id.,
citing Demouchette v. State, 731 S.W.2d 75, 78 (Tex.Crim.App. 1986) (en banc). Moreover, the
court concluded that a rational jury could believe that appellant’s cut fingers, blood on an unlatched
coin purse, and scattered coins on the floor met the threshold of sufficient evidence to support
robbery underlying capital murder. See Wolfe, 917 S.W.3d at 275 (noting that intent can be
inferred from circumstantial evidence). As in Wolfe, the corpus delicti for the robbery of Jorjorian
could be established by the cumulative force of the direct and circumstantial evidence when viewed
separate and apart from Appellant’s statement to law enforcement. See id.; see also Gribble v.
State, 808 S.W.2d 65, 72 (Tex.Crim.App. 1990) (en banc) (indicating that, while there was little
evidence apart from Appellant’s confession to suggest the victim was kidnapped, corpus delicti
32
was satisfied because the record was not “utterly devoid of evidence” to the effect). As such, the
trial court was not required to give the instruction, and we overrule Issue Four.
VII. CONCLUSION
Having overruled Appellant’s issues, we affirm the trial court’s judgment adjudicating
guilt.
JEFF ALLEY, Chief Justice
December 15, 2020
Before Alley, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
33