Delacerda v. State
In Delacerda v. State, No. 01-09-00972-CR, 2011 WL 2931189 (Tex. App.--Houston 1st Dist. July 21, 2011, no pet.), Rogelio Delacerda was convicted of murder in a drive-by shooting that occurred after another passenger in the vehicle, David, had been "jumped" at school by members of a gang.
On the day of the shooting, Delacerda, along with David's cousin and the cousin's girlfriend, picked up David and his friends Carlos and Tommy after school in the girlfriend's truck. Id.
David, Carlos, and Tommy jumped into the bed of the truck, where they laid down to avoid being seen. Id.
Delacerda, David's cousin, and his girlfriend were in the front of the truck. Carlos testified that David said to him, "you're going to find out about a drive-by."
Carlos also testified that David had showed him a gun earlier in the day, and that he handed the gun to Delacerda while they were in the truck.
He testified that, when they drove by a group of students walking down the road, someone in the front of the truck asked David, "Is that them?" Id.
David responded, "I think so." Id. Delacerda then asked David if David wanted him to shoot them. Id. David responded, "I don't know." Id.
Delacerda then discharged the gun five to six times in the direction of the group, fatally wounding the complainant.
Delacerda argued that the evidence raised a fact issue as to whether Carlos was an accomplice-witness because he saw David with the gun, knew that David had been having difficulties with classmates, heard David say "you're going to find out about a drive-by," was hiding in the back of the truck, did not go to the police and tell them what happened, and initially identified David as the shooter rather than Delacerda.
The Court rejected this argument because the evidence did not indicate that Carlos "'performed any affirmative act to assist in the commission of the murder or a lesser-included offense,' or that any of his actions were made with the required culpable mental state."