Background
On December 11, 2017, Robert Cerda and Rachel De La Rosa were killed at and near Susie’s Hair Studio in Houston. Robert was shot multiple times and found wrapped in a plastic bag bound with rope in a field near the interstate. Rachel was shot multiple times and found near a retention pond. The case went cold until 2020, when detectives learned that Dante Nava had provided information to federal authorities about the murders as part of a federal proffer related to drug conspiracy charges. Based on Dante’s information, police identified Herbert Simon as a suspect.
Simon had been living in the back room of the salon, owned by Josue Casco’s sister. On the day of the murders, Simon, Josue, Dante, and Dante’s cousin Cesar were at the salon working on a pill press machine used to manufacture illegal pills. Robert unexpectedly entered the salon and saw the machine. After Robert left and returned moments later, Simon shot Robert multiple times. Josue forced Rachel into the salon, where Simon interrogated and assaulted her. Dante and Josue drove Rachel to a field in Fort Bend County where Josue shot her. The three men then disposed of both bodies and cleaned up the salon.
The Court’s Holding
The court affirmed Simon’s convictions for aggravated kidnapping and murder, rejecting his arguments on five grounds. First, regarding sufficiency of evidence for murder, the court held that Dante’s eyewitness testimony alone was legally sufficient to support the conviction. Although Dante was an accomplice, the court clarified that for purposes of legal sufficiency review under Jackson v. Virginia, courts do not apply the accomplice-witness corroboration rule and may consider all evidence, including accomplice testimony. The court found additional corroborating evidence beyond Dante’s account: Simon lived at the salon, DNA evidence provided moderate support that Simon contributed to the DNA mixtures on the rope used to bind Robert’s body, evidence that Simon was armed inside the salon, proof that Simon destroyed Robert’s cell phone, and Simon’s lies to detectives denying he lived at the salon when he had admitted doing so in a jail phone call.
Second, regarding jury instructions, the court found error in failing to include an accomplice witness instruction for Dante in the murder charge. However, the court held this error was harmless because sufficient corroborating evidence connected Simon to the murder, including Dante’s own participation in shooting Robert, the DNA evidence, evidence of Simon’s presence and actions at the scene, and the circumstantial evidence of consciousness of guilt. The court also found no error in failing to include an accomplice instruction for Cesar, concluding that Cesar was not an accomplice as a matter of law—his presence at the scene and eventual forced participation did not constitute the affirmative act required to establish accomplice liability, particularly where Cesar did not help conceal the crime.
Key Takeaways
- Accomplice testimony alone can support a felony conviction if the witness is credible; courts apply a different standard for legal sufficiency than for the corroboration requirements of Texas Code of Criminal Procedure article 38.14.
- Mere presence at the scene of a crime, even when combined with failure to prevent or report it, does not establish accomplice liability without an affirmative act promoting the offense.
- Omission of an accomplice witness jury instruction is harmless when sufficient corroborating evidence independently tends to connect the defendant to the crime; apparent insignificant circumstances may constitute sufficient corroboration when coupled with other suspicious circumstances.
- Evidence of consciousness of guilt—such as lies to police, destruction of evidence, and statements contradicting prior denials—supports conviction when combined with other evidence.
Why It Matters
This decision clarifies the distinction between the legal sufficiency standard for convictions and the statutory corroboration requirement for accomplice testimony. While courts must apply the corroboration rule as a matter of law when instructing juries, appellate courts reviewing sufficiency of evidence may consider accomplice testimony and other evidence under the broader Jackson standard. This preserves convictions supported by substantial corroborating evidence even when jury instruction error occurs, so long as the error does not rise to the level of egregious harm.
The court’s analysis of accomplice liability is also significant: it reinforces that accomplice status requires an affirmative act promoting the crime, not mere presence or constructive participation. This distinction has important implications in cases involving multiple participants where the degree of involvement varies substantially, as courts must carefully analyze whether each person’s conduct crossed the threshold from witness to accomplice.