Santiago Esparza Junior v. the State of Texas

Affirmed and Memorandum Opinion filed May 23, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00572-CR

SANTIAGO ESPARZA, JR., Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 1645126

MEMORANDUM OPINION

Appellant Santiago Esparza, Jr. appeals his conviction for tampering with
evidence, namely a human corpse, arguing (1) there is insufficient evidence to
prove he concealed the human corpse, and (2) he was egregiously harmed when
the trial court erroneously failed to include an accomplice witness instruction in the
jury charge. We affirm.
BACKGROUND

Appellant was indicted for the offense of tampering with evidence, namely a
human corpse, and a seven-day trial was held starting on July 18, 2022. Evidence
presented at trial showed that Priscilla Torres and her five-year-old daughter,
Sarah,1 lived with Priscilla’s parents. On August 20, 2019, Priscilla took Sarah to
the doctor for a urinary tract infection; Sarah was prescribed antibiotics. The next
day, Sarah went to school but had diarrhea, so Priscilla picked her up from school.
On August 22, 2019, Priscilla took Sarah back to the doctor because she had
diarrhea and was vomiting; the doctor told her to stop giving her antibiotics and to
give her Pedialyte. Although Sarah was not feeling well, did not eat or drink
much, and complained of stomach pain, Priscilla decided to spend the night with
Sarah at Appellant’s apartment.

Priscilla’s and Appellant’s families had been neighbors, but Priscilla had not
really talked to Appellant until she and her family were at Appellant’s dad’s
birthday party. In July, Appellant and Priscilla started flirting and Priscilla claimed
that Appellant promised to give her “a happy family.” When Priscilla went to
Appellant’s apartment with Sarah on August 22, 2019, she only packed clothes for
Sarah because Priscilla planned to only stay overnight. She told her mother that
she was not going to come back and that Appellant was treating her and Sarah
“like queens.” Later, according to Priscilla, she did not leave Appellant’s
apartment because he had told her she “wasn’t going home” and threatened to
harm her parents, and she was scared to leave.

During the day on August 23, Sarah continued to not feel well. When
1
Because the victim in this case was a minor, we refer to her using a pseudonym. See
Tex. R. App. P. 9.10(a)(3).

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Priscilla was giving Sarah a bath, Appellant told Priscilla that he would bathe
Sarah because he wanted Priscilla to cook for him. He told Priscilla that “if we’re
going to be together you’ve got to trust me and let me help you do this.” When
Priscilla went to check on Appellant and Sarah, the bathroom door was locked.
Sarah got burned when Appellant bathed her. Sarah did not talk much; she tried to
drink, “but her lips were so swollen everything kept coming out.” Priscilla did not
take Sarah to the doctor because Priscilla claimed that Appellant had told her they
would go to jail and CPS would take Sarah if she sought medical help.

The next two days, Sarah continued to deteriorate and “looked terrible.”
Because the mother of his child was coming for an overnight visit on August 26,
2019, Appellant took Priscilla and Sarah to a vacant apartment where the two spent
the night on the floor. During the night, Sarah did not talk and continued to vomit.
The next morning when his son and the mother had left, Appellant brought
Priscilla and Sarah back to his apartment. Appellant carried Sarah in a blanket
because she was unable to walk, was vomiting, “had flies around her,” and “had
bumps all on her.”

Back at Appellant’s apartment, Priscilla unwrapped Sarah who had trouble
breathing and was gasping for air. Appellant and Priscilla tried to give her
antibiotics and applied Neosporin to her skin. Priscilla believed Sarah was
dehydrated, so she started bathing her in the bathtub. When Sarah stopped
breathing, Appellant performed CPR, but Sarah died. Priscilla stated that
Appellant took Sarah’s body, placed it on the floor in his closet, and covered it
with a blanket. Priscilla claimed she was scared to call police because Appellant
“had said that we were both going to go to jail if we called on her about anything.”
Thereafter, Priscilla and Appellant went to his brother’s home.

Appellant and Priscilla did not spend much time at Appellant’s apartment

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after Sarah died, although they slept there until August 31 and then rented a hotel
room. Appellant quit his job as a maintenance man at the apartment complex; he
packed up all his clothes and told Priscilla they had to leave the apartment,
although they returned to the apartment a few times. Priscilla stated that Appellant
had picked the front door lock so no one could put a key inside and open the
apartment. When they would return to the apartment, Appellant would climb over
the tall patio fence, go through the patio sliding doors, and unlock the front door
for Priscilla.

After Priscilla’s mother threatened to file a missing person report regarding
Sarah on September 2, 2019, Priscilla returned to the apartment by herself and
called the police to report Sarah was dead. Officer Jackson arrived shortly
thereafter, and he could smell the “very distinctive” smell of a “deceased person.”
He found Sarah’s body covered with a blanket and sheets laying on the floor in
Appellant’s bedroom closet.

A jury found Appellant guilty of tampering with evidence. The parties
stipulated that Appellant had two prior felony convictions. The trial court found
both alleged enhancement paragraphs true and assessed Appellant’s punishment at
forty years’ confinement. Appellant filed a timely notice of appeal.

ANALYSIS

Appellant presents two issues on appeal, which we address in turn.

I. Sufficiency of the Evidence

In his first issue, Appellant contends the evidence is insufficient to prove he
concealed Sarah’s body.

A. Standard of Review and Governing Law

Evidence is sufficient to support a criminal conviction if a rational jury
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could find each essential element of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Stahmann v. State, 602 S.W.3d 573,
577 (Tex. Crim. App. 2020). We view the evidence in the light most favorable to
the verdict and consider all of the admitted evidence, regardless of whether it was
properly admitted. Stahmann, 602 S.W.3d at 577. The jury is the sole judge of
credibility and weight to be attached to the testimony of the witnesses. Id. The
jury may choose to believe or disbelieve all or part of a witness’s testimony, and
we presume the jury resolved any conflicts in the evidence in favor of the
prevailing party. Thomas v. State, 444 S.W.3d 4, 8, 10 (Tex. Crim. App. 2014);
Green v. State, 607 S.W.3d 147, 152 (Tex. App.—Houston [14th Dist.] 2020, no
pet.). Juries can draw reasonable inferences from the evidence so long as each
inference is supported by the evidence produced at trial. Stahmann, 602 S.W.3d at
577. “Each fact need not point directly and independently to the appellant’s guilt
so long as the cumulative effect of all incriminating facts is sufficient to support
the conviction.” Davis v. State, 586 S.W.3d 586, 589 (Tex. App.—Houston [14th
Dist.] 2019, pet. ref’d).

As applicable in this case, a person commits the offense of tampering with
evidence if, knowing that an investigation or official proceeding is pending or in
progress, he alters or conceals a human corpse with intent to impair its availability
as evidence in the investigation or official proceeding. See Tex. Pen. Code Ann. §
37.09(a)(1), (c). When the jury charge authorizes conviction on multiple theories
of liability, we will sustain the conviction if the evidence is sufficient to prove any
of the theories submitted in the jury charge. Stahmann, 602 S.W.3d at 577.

B. Application

Appellant contends the evidence is insufficient to prove he actually
concealed Sarah’s body because “everyone whom Ms. Torres let into the

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apartment could see the body under the blanket in the closet.” We disagree.

At trial, Priscilla testified that Appellant took Sarah’s dead body, placed it
on the floor in his closet, and covered it with a blanket. Evidence showed that
Appellant put the air conditioning thermostat on 45 degrees, which would slow
down the decomposition of Sarah’s body. Priscilla testified that because Appellant
wanted to prevent the discovery of Sarah’s body, he used a chain on the front door,
locked the door from inside, and “picked” the front door lock so that no one could
open the apartment door. When Appellant and Priscilla would leave the apartment,
Appellant would let Priscilla exit through the front door, then he would “pick the
lock”, exit through the patio sliding door, and jump over the tall patio fence. And
to enter the apartment, Appellant would climb over the patio fence, enter the
apartment through the patio sliding door, and unlock the front door for Priscilla.

Sarah’s body was not discovered until Priscilla called the police. Contrary
to Appellant’s assertion, body camera video shows that police officers could not
see Sarah’s body upon entering the apartment. Officers had to walk through the
apartment into the master bedroom, turn to the side to get to the closet, open the
closet door, and remove a blanket and sheets to see Sarah’s body.

Although the tampering-with-evidence statute does not define “conceal,” the
court of criminal appeals has stated that “[a]n item is concealed if it is ‘hidden,
removed from sight or notice, or kept from discovery or observation.’”
McPherson v. State, 677 S.W.3d 663, 665 (Tex. Crim. App. 2023) (quoting
Stahmann, 602 S.W.3d at 581).

Applying that definition to the present case, legally sufficient evidence
establishes that Appellant’s placement of Sarah’s body covered with a blanket and
sheets in his bedroom closet in his locked and inaccessible apartment kept the body
“hidden,” “removed from sight,” and “from discovery and observation,” thus
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establishing concealment for purposes of the tampering-with-evidence statute. See
McPherson, 677 S.W.3d at 665; Stahmann, 602 S.W.3d at 581. Appellant’s
concealment is further demonstrated by the fact that Sarah’s body was not
discovered until Priscilla called the police and revealed the location of the body to
law enforcement. See King v. State, No. 01-23-00094-CR, 2024 WL 1220546, at
*11 (Tex. App.—Houston [1st Dist.] Mar. 21, 2024, no pet. h.) (mem. op., not
designated for publication) (concealment was shown when the location of victim’s
corpse was not discovered until defendant’s brother revealed it to police); see also
Barron v. State, 629 S.W.3d 557, 562-63 (Tex. App.—Eastland 2021, pet. ref’d)
(concealment was shown when the location of victims’ corpses was not discovered
until defendants revealed the location to police); Barron v. State, No. 11-19-00128-
CR, 2021 WL 1432978, at *1-3 (Tex. App.—Eastland Apr. 15, 2021, no pet.)
(mem. op., not designated for publication) (same); Munsch v. State, No. 02-12-
00028-CR, 2014 WL 4105281, at *8 (Tex. App.—Fort Worth Aug. 21, 2014, no
pet.) (mem. op., not designated for publication) (concealment was shown when the
location of drugs would not have been known but for driver revealing that
passenger threw the drugs out the window after being stopped by police).

Viewing the evidence in the light most favorable to the verdict, we conclude
there is sufficient evidence to establish Appellant concealed Sarah’s body.

We note that Appellant for the first time in his reply brief argues the
evidence is insufficient to prove he knew an investigation was pending. However,
an appellant may not raise a new issue in a reply brief because Texas Rule of
Appellate Procedure 38.3 allows courts of appeals to decide the matter prior to
receiving the reply brief. Chambers v. State, 580 S.W.3d 149, 161 (Tex. Crim.
App. 2019). In his opening brief, Appellant only argued that the evidence is
insufficient to prove he concealed Sarah’s body; he never challenged any other

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elements. Therefore, we do not consider Appellant’s argument raised for the first
time in his reply brief. See Tex. R. App. P. 38.3; Chambers, 580 S.W.3d at 161;
State v. Ford, 673 S.W.3d 749, 751 (Tex. App.—Waco 2023, no pet.); Deutsch v.
State, 566 S.W.3d 332, 341 n.9 (Tex. App.—Houston [14th Dist.] 2018, no pet.);
see also Collins v. State, No. 04-20-00139-CR, 2022 WL 527668, at *4 n.5 (Tex.
App.—San Antonio Feb. 23, 2022, no pet.) (mem. op., not designated for
publication); Miller v. State, No. 01-19-00126-CR, 2020 WL 4590304, at *11
(Tex. App.—Houston [1st Dist.] Aug. 11, 2020, no pet.) (mem. op., not designated
for publication).

Accordingly, we overrule Appellant’s first issue.

II. Accomplice Witness Instruction

In his second issue, Appellant asserts he was egregiously harmed by the trial
court’s failure to instruct the jury that Priscilla was an accomplice as a matter of
law and that her testimony must be corroborated.

A. Error

“A conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the offense
committed; and the corroboration is not sufficient if it merely shows the
commission of the offense.” Tex. Code Crim. Proc. Ann. art. 38.14. Therefore, if
an accomplice to the offense testifies for the State, such testimony must be
corroborated by non-accomplice evidence that tends to “connect the accused to the
offense.” State v. Ambrose, 487 S.W.3d 587, 593 (Tex. Crim. App. 2016); Smith v.
State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011). Corroborating evidence may
be either direct or circumstantial. Ambrose, 487 S.W.3d at 593.

An accomplice is one who participates in an offense, before, during, or after

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its commission, to the extent that she can be charged with the offense or with a
lesser-included offense. Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App.
2002) (en banc). A prosecution witness who is indicted for the same offense with
which the defendant is charged is an accomplice as a matter of law. Id. If a
prosecution witness is an accomplice as a matter of law, the trial court must
instruct the jury accordingly, and failure to do so is error. Id.

Here, Appellant was indicted for the offense of tampering with evidence,
and the record shows that Priscilla was indicted for the same offense and pled
guilty. Thus, Priscilla was an accomplice as a matter of law, and the trial court’s
failure to instruct the jury to that effect was error. See id.

B. Harm

Next, we must determine whether the trial court’s error was harmful. To
answer this question, we have to examine the effect an accomplice witness
instruction has on trial. Id. As we stated, article 38.14 provides that a conviction
cannot be based on an accomplice’s testimony unless the testimony is corroborated
by other evidence that tends to connect the defendant to the offense. Id.; see also
Tex. Code Crim. Proc. Ann. art. 38.14. The purpose of an accomplice witness
instruction is not to cast suspicion on the testimony provided by accomplice
witnesses or to encourage jurors to give less weight to their testimony; instead, the
instruction merely reminds the jury that it cannot use the accomplice witness’s
testimony to convict a defendant unless there also exists some corroborating
evidence tying the defendant to the offense. See Cocke v. State, 201 S.W.3d 744,
747 (Tex. Crim. App. 2006); Herron, 86 S.W.3d at 632. Once it is determined that
such non-accomplice evidence exists, the purpose of the instruction is fulfilled, and
the instruction plays no further role in the jury’s decision-making. Herron, 86
S.W.3d at 632. “Therefore, non-accomplice evidence can render harmless a failure

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to submit an accomplice witness instruction by fulfilling the purpose an
accomplice instruction is designed to serve.” Id.

Under Almanza v. State, the appropriate harm analysis depends upon
whether an appellant preserved error by bringing the omission of the instruction
from the jury charge to the trial court’s attention. 686 S.W.2d 157, 171 (Tex.
Crim. App. 1985) (en banc) (op. on reh’g); see also Herron, 86 S.W.3d at 632;
Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991) (en banc). When
error is properly preserved, a reversal is required if “some harm” is shown; but
when an appellant failed to preserve error, egregious harm must be shown.
Almanza, 686 S.W.2d at 171; Lewis v. State, 448 S.W.3d 138, 144 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d). The difference in harm standards affects
how strong the non-accomplice evidence must be before an erroneous omission of
an accomplice witness instruction is considered harmless. Herron, 86 S.W.3d at
632.

Egregious harm is the proper standard of review in this case because
Appellant admits that he did not request an accomplice witness instruction or bring
the omission of such an instruction to the trial court’s attention, thus failing to
preserve error.

“Under the egregious harm standard, the omission of an accomplice witness
instruction is generally harmless unless the corroborating (non-accomplice)
evidence is ‘so unconvincing in fact as to render the State’s overall case for
conviction clearly and significantly less persuasive.’” Id. (quoting Saunders, 817
S.W.2d at 692); Lewis, 448 S.W.3d at 144. To determine the strength of
corroborating evidence, we examine (1) its reliability or believability, and (2) the
degree to which it tends to connect the defendant to the offense. Herron, 86
S.W.3d at 632; see also Casanova v. State, 383 S.W.3d 530, 539 (Tex. Crim. App.

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2012). “Corroborating evidence that is exceedingly weak—that is to say, evidence
that, while it is legally sufficient to tend to connect, is nevertheless inherently
unreliable, unbelievable, or dependent upon inferences from evidentiary fact to
ultimate fact that a jury might readily reject—may call for a conclusion that the
failure to give the accomplice-witness instruction resulted in harm regardless of
whether the deficiency was objected to.” Casanova, 383 S.W.3d at 539.

Here, the non-accomplice evidence is neither weak or insubstantial nor is it
unreliable, unbelievable, or contradicted. The jury viewed apartment surveillance
video footage which showed Priscilla and Sarah had stayed with Appellant for
several days before Sarah’s death. Video showed Appellant and Priscilla exiting
and entering the apartment through the front door before Sarah’s death. Late in the
evening on August 26, 2019, Appellant and Priscilla can be seen exiting
Appellant’s apartment carrying Sarah wrapped in a blanket. About thirty minutes
later, the video shows a woman and child being let into Appellant’s apartment.

The next morning on August 27, the woman and child can be seen leaving
Appellant’s apartment. A few minutes later, Appellant and Priscilla can be seen
exiting Appellant’s truck and Appellant carrying Sarah wrapped in a dark blanket
to his apartment while Priscilla is walking behind him. Surveillance video further
shows that about two and a half hours later Priscilla exits Appellant’s apartment
through the front door but Appellant jumps over the tall patio fence, corroborating
that Appellant locked the apartment door from the inside to prevent anyone from
entering the apartment and discovering Sarah’s body. It was undisputed that Sarah
died that day.

Video shows Appellant at the apartment complex shaking hands with
coworkers in the morning of August 29. The apartment maintenance supervisor
testified that Appellant quit his job as a maintenance worker at the apartment

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complex on that day. The supervisor also testified that Appellant had stopped
working on August 26; according to the supervisor, Appellant had stated his child
was sick and he needed to take the child to the doctor. Shortly after resigning from
his maintenance job in the morning of August 29, Appellant can be seen by his
apartment putting items into his truck, jumping over the patio fence instead of
exiting through the front door, and then driving away.

In the early morning of August 30, video shows Priscilla and Appellant in
front of his apartment by his truck. Afterwards, Appellant can be seen jumping
over the patio fence to leave his apartment. The next morning, video shows
Appellant arriving in an SUV, backing it in the walkway of his apartment entrance,
and packing things into the trunk — showing that Appellant had moved his things
out of the apartment.

Police video of September 2, 2019, showed that Sarah’s body, covered with
a dark blanket and sheets, was laying on the floor of Appellant’s bedroom closet in
his apartment. In fact, Officer Jackson’s body camera video showed that he
walked through Appellant’s apartment to Appellant’s bedroom, opened the door to
the bedroom closet, and had to lift a dark blanket and sheet to see Sarah’s
decomposed body. Crime scene supervisor Wingert and Detective Lange testified
that they had observed candles and air freshener in the living room as well as a lit
scented “Scentsy candle” in Appellant’s bedroom near the closet. Detective Lange
testified that in his investigation he determined the air freshener and scented candle
showed an attempt to conceal the smell of Sarah’s decomposing body.

The State offered reliable and undisputed corroborating evidence that was
indicative of Appellant’s guilt while there was no plausible defensive evidence
presented. Non-accomplice evidence showed Appellant was not only aware that
Sarah died but he kept Sarah’s body concealed under a blanket and sheets in his

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bedroom closet in his locked apartment for almost seven days. Appellant jumping
over the tall patio fence to leave his apartment corroborated testimony that he had
locked the front door to restrict access by anyone to his apartment, thus preventing
discovery of Sarah’s body.

Having reviewed the entire record in this case, we find the corroborating
evidence presented by the State is not so unconvincing in fact as to render the
State’s overall case for conviction clearly and significantly less persuasive. See
Casanova, 383 S.W.3d at 540; Herron, 86 S.W.3d at 632; Saunders, 817 S.W.2d at
692. We cannot conclude that Appellant suffered egregious harm from the lack of
an accomplice witness instruction.

Accordingly, we overrule Appellant’s second issue.

CONCLUSION

Having overruled Appellant’s two issues, we affirm the trial court’s
judgment.

/s/ Meagan Hassan
Justice

Panel consists of Justices Hassan, Poissant, and Wilson.

Do Not Publish — Tex. R. App. P. 47.2(b).

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