Opinion
No. 05-02-01378-CR.
Opinion Filed August 27, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-75524-W. Affirmed.
Before Justices WRIGHT, MOSELEY, and FRANCIS.
MEMORANDUM OPINION
A jury convicted Alvaro Borja for the murder of Juan Cordova. The trial court found Borja used or exhibited a deadly weapon during commission of the murder. The jury assessed punishment at thirty-six years' confinement. Borja appeals and brings seven points of error complaining of the legal and factual sufficiency of the evidence, alleged jury charge errors in failing to instruct on the lesser-included offense of manslaughter, failing to apply self-defense to party liability, failing to instruct on accomplice witness evidence, and ineffective assistance of counsel. The background of the case and the evidence adduced at trial are well-known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgment. In his first two points of error, Borja asserts the evidence was legally and factually insufficient to support the jury's verdict on his conviction. In his third point of error, Borja asserts the evidence was factually insufficient to support the jury's implied finding that the shooter was not acting in self-defense. We apply the appropriate standard of review. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995) (legal sufficiency); see also Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003) (factual sufficiency of rejection of defense); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2002) (factual sufficiency). A person commits murder if he intentionally or knowingly causes the death of an individual; or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(1), (2) (Vernon 2003). Further, a person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another that he is criminally responsible for, or by both. Id. § 7.01(a). A person is criminally responsible for an offense committed by another if, with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a). Borja specifically argues the evidence was legally and factually insufficient to show Borja's identity as the shooter or as a party to the shooting. The record includes evidence that several days before the shooting, Borja and another man, possibly Fuentes, were robbed at a car wash by Cordova and three other men, possibly including Duran. On the day of the shooting, Borja, Fuentes, and a man named Vega drove Borja's car to a car stereo store, where they encountered and confronted Cordova and Duran. A fight ensued between Borja's group (Borja, Fuentes, and Vega) and Cordova and Duran. Borja's group demanded the return of the money and property allegedly stolen by Cordova. According to Duran, Borja held him at gunpoint while the other two men tried to force Cordova into Borja's car. During the struggle, Cordova broke free, slammed the car door, and headed toward Borja, who was holding Duran. According to Duran, Borja shot Cordova twice, killing him. Borja testified that he and Vega struggled to hold Cordova when Cordova's hands went down to his waist. Borja thought Cordova was going to pull a weapon. Cordova got loose and Borja and Vega ran. Then, according to Borja, Cordova was shot by Fuentes. Borja did not know Fuentes was carrying a gun. Borja suggested that Fuentes shot Cordova to prevent Cordova from reaching for a weapon. However, Duran testified that Cordova did not have a gun and did not hit or threaten Borja or his companions. Duran also said Cordova did not reach into his waistband during the struggle. A witness at the car stereo store, Alday, testified he knew Borja before the shooting and had tried to buy a handgun from Borja in the past. Before the shooting, Alday saw Borja with a handgun resembling the gun used in the shooting. The gun scientifically linked to the shooting was found in Borja's apartment when he was arrested about a month after the shooting. According to Borja, the gun belonged to Fuentes, who left it at Borja's apartment when Fuentes fled to Mexico after the shooting. Borja argues the evidence was factually insufficient because Duran and Alday were biased. The jury heard evidence that Duran considered Cordova his brother-in-law and that Alday was an informant against Borja. The jury was in the best position to determine the credibility of the witnesses and the weight to give their testimony. We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. Johnson, 27 S.W.3d at 7. The jury is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). The jury is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Furthermore, although there was some conflicting testimony, reconciling those conflicts was within the exclusive province of the jury. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Nothing in the appellate record clearly reveals a different result is appropriate, therefore, we defer to the jury's determination of credibility and the weight to give contradictory evidence. See Johnson, 27 S.W.3d at 8. After considering the evidence, including the above evidence, in the light most favorable to the verdict, we conclude a rational trier of fact could have found Borja intentionally or knowingly caused Cordova's death, or that Borja intended to cause Cordova serious bodily injury and committed an act clearly dangerous to human life that caused Cordova's death. Thus, the fact finder could have found beyond a reasonable doubt that Borja murdered Cordova. See Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574. Further, viewing all the evidence in a neutral light, we cannot say the evidence of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or that the proof of guilt is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 10-11. We also cannot say the evidence that Borja did not murder Cordova in self-defense is so obviously weak as to undermine confidence in the fact finder's determination, or that the proof of lack of self-defense is greatly outweighed by contrary proof. See Zuliani, 97 S.W.3d at 595. We need not further detail the rest of the evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Because we conclude the evidence is legally and factually sufficient to support Borja's guilt as a principal, we need not address the sufficiency of the evidence as to Borja's guilt as a party. See Ladd v. State, 3 S.W.3d 547, 564-65 (Tex.Crim.App. 1999) (where evidence clearly supports defendant's guilt as primary actor, any error in charging on law of parties is harmless); Black v. State, 723 S.W.2d 674, 675 (Tex.Crim.App. 1986). Borja also argues the evidence is insufficient because we may not consider uncorroborated accomplice testimony. Borja argues that Duran was an accomplice and therefore the State had to corroborate Duran's testimony. It is axiomatic that an accomplice witness is someone who assists the accused before or during the commission of an offense and who could be prosecuted for the offense with which the accused is charged. Crank v. State, 761 S.W.2d 328, 349 (Tex.Crim.App. 1988), overruled on other grounds by Alford v. State, 866 S.W.2d 619, 624 n. 8 (Tex.Crim.App. 1993). Mere presence during the commission of the crime does not make a witness an accomplice. Medina v. State, 7 S.W.3d 633, 641 (Tex.Crim.App. 1999). A witness is not an accomplice merely because he knew of the offense and failed to disclose it, or even concealed it. Kunkle v. State, 771 S.W.2d 435, 439 (Tex.Crim.App. 1986). There must be sufficient evidence in the record connecting the witness "to the criminal offense as a blameworthy participant." Blake v. State, 971 S.W.2d 451, 455 (Tex.Crim.App. 1998). An affirmative act or omission is required. Id. at 454. The record establishes beyond question that Duran was not Borja's accomplice in the murder of Cordova. Borja admitted he and two other men confronted Cordova and Duran about the robbery several days before. Borja admitted his group (Borja, Fuentes, and Vega) struggled against Cordova (the victim) and Duran. Duran testified that Borja held him at gunpoint while the other two men tried to force Cordova into Borja's car. According to Borja, Duran was merely present while Borja and Vega assaulted Cordova. There is no evidence in the record connecting Duran as a blameworthy participant to the murder. Thus, Duran's testimony did not require corroboration. We overrule Borja's first three points of error. Further, because there was no evidence Duran was Borja's accomplice, we also overrule Borja's sixth point of error complaining of the failure to charge the jury on accomplice witness testimony. In his fourth and fifth points of error, Borja complains the charge failed to instruct the jury on the lesser-included offense of manslaughter and failed to apply the law of self-defense to party liability. We overrule these points because Borja failed to request these jury instructions or to object to their omission from the charge. See Rogers v. State, 105 S.W.3d 630, 639 (Tex.Crim.App. 2003) (citing Mendoza v. State, 88 S.W.3d 236, 239 (Tex.Crim.App. 2002)) (if timely requested and raised by evidence defendant entitled to instruction on defensive issue); Posey v. State, 966 S.W.2d 57, (Tex.Crim.App. 1992) (trial court has no duty to sua sponte instruct on an unrequested defensive issue); Kinnamon v. State, 791 S.W.2d 84, 96 (Tex.Crim.App. 1990) (refusing to consider contention that court erred by failing to submit lesser-included offense because appellant did not request instruction), overruled on other grounds by Cook v. State, 884 S.W.2d 485, 491 (Tex.Crim.App. 1994). Further, any error in failing to apply the law of self-defense to the law of parties was harmless because the evidence clearly supported Borja's guilt as a principal. See Ladd, 3 S.W.3d at 564-65. We overrule Borja's fourth and fifth points of error. In his seventh point of error, Borja claims his trial counsel rendered ineffective assistance in violation of his rights under the sixth and fourteenth amendments to the United States Constitution. To prevail on a claim of ineffective assistance of counsel, Borja must show his trial counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability the results of the proceedings would have been different in the absence of counsel's unprofessional errors. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex.Crim.App. 1986). Borja has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 1985). Borja alleges his trial counsel erred by: (1) not cross-examining the Duran, the only witness to identify appellant as the shooter, for bias or motive; (2) applying parole law in argument to the jury; (3) failing to request a charge on the lesser-included offense of manslaughter; (4) failing to request a charge applying the law of parties to self-defense; and (5) failing to request an instruction on accomplice testimony. Borja alleges his trial counsel failed to cross-examine Duran about a possible immunity agreement with the State. At the hearing on Borja's motion for new trial, both prosecutors denied the existence of an immunity agreement with Duran. They testified they told the trial court in an unrecorded bench conference that Duran would not be prosecuted for the robbery because: (a) the alleged victim, Fuentes, had fled to Mexico; (b) the primary actor, Cordova, was dead; and (c) the only other witness, Borja, said Duran did not participate in the robbery. Borja's counsel testified he did not inquire into the nature of any immunity deal, but on reflection he felt he should have cross-examined Duran about his knowledge of immunity and what he might gain from testifying. Borja's counsel's strategy was to cross-examine Duran about the fact that only a week before the murder, Duran had himself committed a felony, and to use that to impeach Duran. On cross-examination, Borja's counsel was able to show Duran's participation in the earlier robbery, including that Duran had hit Fuentes. The record does not show that counsel's failure to cross-examine a witness about a non-existent immunity agreement and strategy for impeaching the witness fell below an objective standard of reasonableness. Next, Borja complains that his counsel was ineffective because he applied parole law to Borja during his final argument to the jury on punishment. The jury was given the statutory instruction on parole law. Tex. Code Crim. Proc. Ann. art. 37.07 § 4(a). That instruction informs the jury that a defendant convicted of murder is not eligible for parole until he has served at least one-half of his sentence or 30 years, whichever is less, without considering good conduct time, and that the jury may not consider the manner in which the parole law may be applied to this particular defendant. After arguing for probation, Borja's counsel argued that the jury should assume Borja would serve at least half of any sentence imposed. Counsel contrasted probation with imprisonment and asked what would be accomplished by sending Borja to prison other than locking him away. Defense counsel concluded:
If you give him life, that guarantees he won't be out of the penitentiary for at least 30 years.
You could give him 50 years. That means that would guarantee he won't even be eligible for parole until 25 or half of that has passed. So you can lock him up for a long, long time if you believe that that will accomplish something. But I'm going to ask you very seriously to consider what will it accomplish.In context Borja's counsel argued imprisonment would accomplish nothing but locking Borja away for a significant number of years. In contrast, counsel argued that probation would not be an easy way out for Borja, and the restrictions and structure of probation would allow for rehabilitation. The hearing on the motion for new trial did not show evidence of counsel's strategy or reasons for making this argument. In this context, the argument did not encourage a greater sentence, but rather encouraged probation or a lesser sentence on the grounds that putting Borja away for a long, long time would not accomplish anything. We conclude the record does not show counsel's conduct fell below an objective standard of reasonableness. Further, the State argued for a life sentence, but the jury sentenced Borja to thirty-six years in prison. We conclude Borja has not shown a reasonable probability that the outcome of the proceeding would have been different without the alleged error of counsel. The record does not show counsel's strategy for not requesting an instruction on the lesser-included offense of manslaughter. Thus, Borja has failed to overcome the strong presumption in favor of effective assistance of counsel. It is reasonable trial strategy to decide not to request a charge on a lesser-included offense because the jury has to choose between the charged offense and acquittal. See Lynn v. State, 860 S.W.2d 599, 603 (Tex.App.-Corpus Christi 1993, pet. ref'd). Regarding trial counsel's failure to request an instruction applying self-defense to the law of parties, the evidence was sufficient to support Borja's guilt as a principal. Thus, Borja has not shown there is a reasonable probability the results of the proceeding would have been different in the absence of any error in the charge as to the law of parties. As we discussed earlier, while there was some evidence Duran had been Cordova's accomplice in the earlier robbery, there is no evidence he was an accomplice in the later shooting of Cordova. Therefore, the failure of Borja's counsel to request an instruction on accomplice testimony did not fall below an objective standard of reasonableness. After reviewing the entire record, we conclude Borja failed to meet either prong of the Strickland standard for ineffective assistance of counsel. Borja's seventh point of error is overruled. We affirm the judgment of the trial court.