No. 05-10-00132-CR
Opinion Filed May 31, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-64527-R.
Before Justices RICHTER, LANG, and FILLMORE.
Opinion By Justice LANG.
Appellant Cesar Ivan Chavez was charged by indictment with causing the deaths of two persons, Lacrege Anderson and Christopher Hernandez, during the same criminal transaction. Following a plea of not guilty, appellant was convicted by a jury of capital murder. Punishment was assessed by the trial court at imprisonment for life. In two issues on appeal, appellant contends the evidence is legally and factually insufficient to "prove that [a]ppellant was the person who caused the deaths of either named victim." We decide against appellant on his two issues. The trial court's judgment is affirmed. Because all dispositive issues are well settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
At trial, Foster Vasquez testified appellant is a cousin of his wife, Brenda. Vasquez stated he has known appellant for about six years. Vasquez calls appellant by the nickname "Chicho." In December 2008, Vasquez sold drugs out of his home. Vasquez lived in one unit of a duplex, and the other unit was occupied by his mother and sister. According to Vasquez, at that time, his relationship with appellant was "pretty cool" and they "hanged out" together. Appellant had visited Vasquez's home on numerous occasions. At approximately 7 a.m. on the morning of December 29, 2008, Vasquez was sitting in the living room of his home watching a monitor that was connected to a surveillance camera outside his home. Vasquez's two bodyguards, Anderson and Hernandez, were sleeping on different couches in the same room where Vasquez was sitting. On a coffee table in that room, near the front door to the house, was a loaded AR-15 semiautomatic rifle. On the monitor, Vasquez saw "a little white car" pass by slowly and he became "a little paranoid" because he had a large amount of drugs in his possession. Vasquez testified he "felt something was going to happen." He phoned his sister, Janet Vasquez ("J. Vasquez"), and asked her if she had seen the white car. She told him she had not. Vasquez smoked some marijuana and "chilled." Vasquez testified that when he looked at the monitor again, he saw "two guys" standing outside the locked gate of the iron fence that surrounded his home. He could not identify the men from the image on the monitor. He opened the front door and screen door and saw appellant and a man he did not recognize at the gate. Vasquez greeted appellant. Appellant asked Vasquez to let him in, and Vasquez asked him why. According to Vasquez, appellant said he had just gotten into a fight with his dad. Vasquez threw the keys to the gate to appellant, then went back into the house and sat down on the couch on which Hernandez was sleeping. Vasquez stated that when he sat down, Anderson got up, picked up the gun from the coffee table, "looked at it, waved it," then put it back down. Hernandez remained sleeping. Appellant came into the house. According to Vasquez, "[r]ight when [appellant] came in, he looked down grabbed the gun and just cocked it back" and started shooting at Vasquez. Vasquez testified appellant shot him in the shoulder. Vasquez stood up and moved toward the front door. He testified appellant was standing near the front door, but there was enough space for him to pass by appellant to the doorway. Vasquez testified appellant was still shooting, but not at him. Vasquez tried to run out the front door, but the man who had arrived with appellant was standing outside the doorway, holding the screen door. The man at the screen door told Vasquez in Spanish that he was going to kill him. Vasquez testified the man started hitting him in the head with a "tire iron." Vasquez tried to fight back, but gave up. Vasquez stumbled and fell to the floor. Vasquez testified that when he looked up, he saw appellant shooting at Anderson and Hernandez. Then, appellant started shooting at Vasquez again. Vasquez testified he was shot six times. He passed out. Vasquez stated he remembered someone shaking him and asking who "did this" to him. He testified he answered, "Chicho." According to Vasquez, appellant was the only person in the house with a gun when the shooting occurred. Vasquez testified that as a result of his injuries, he has no control of his left arm and suffers seizures and short-term memory problems. However, he testified, his memory of the shooting is clear. Vasquez stated that about a week before the shooting, appellant asked him for $500, but Vasquez "never did lend it to him." At some point after the shooting, Vasquez discovered he was "missing a couple of stuff," including a diamond earring, a bracelet, and two rings. Vasquez testified he had been wearing the diamond earring at the time he was shot. He could not recall if he had been wearing the bracelet and rings at that time. J. Vasquez testified that on the day of the shooting, Vasquez called her in the morning before she left for work and asked her about the white car, which she told him she had not seen. She left for work at 8 a.m. and returned home at about 5:15 p.m. She went to bed at 10 p.m. Sometime after that she was awakened by yelling. Her mother told her, "Foster's been shot and his friends are shot." J. Vasquez went to Vasquez's home and went inside. In addition to her mother, her brother Eric, and the three men who had been shot, two people J. Vasquez had never seen before were there. J. Vasquez assumed they were friends of Vasquez. According to J. Vasquez, there was "blood everywhere." She asked Vasquez what happened, and he said "Chicho, Chicho. Cesar." Her mother asked him, "Janet's Chicho?" Vasquez answered, "No, Brenda's cousin." J. Vasquez called 911. Victoria Ramirez testified through an interpreter that she lives across the street from the duplex where the shooting took place. On the date of the shooting, she was awakened sometime between 9 a.m. and 10 a.m. by noises that sounded like "someone banging with a hammer." She looked out her front window toward the duplex. Ramirez testified she saw two or three Hispanic men in the yard of Vasquez's house, inside the metal fence that surrounded the house. They appeared to be empty-handed. Ramirez saw the men jump over the metal fence to the area outside of the yard. Officer Deloach of the Dallas Police Department testified he and his partner were dispatched to Vasquez's home on the date of the shooting and were the first officers to arrive on the scene. Deloach stated that when he entered the house, he saw Hernandez on the couch, "covered in dried blood." Anderson was laying on the floor and appeared to be deceased. Vasquez was on the ground with his head in the doorway, still breathing. Officer Herbert Ebsen of the Dallas Police Department testified that on December 30, 2008, he and his partner were called to assist other officers in "watching a location where a murder suspect was and they were waiting to see if he was going to drive off." Ebsen initiated a traffic stop of a vehicle in which appellant was riding as a passenger. In the back seat of the vehicle, police found a black and gold duffle bag containing a semiautomatic rifle. Ebsen testified he transported appellant to the police station. Charles Clow, a firearm and tool examiner for the Southwestern Institute of Forensic Sciences, testified that the bullets recovered during the autopsies of Hernandez and Anderson were fired by the semiautomatic rifle recovered during the December 30, 2008 traffic stop of the vehicle in which appellant was riding. Anna Rodriguez testified she dated appellant for about six months in 2008. They broke up around December 1, 2008, but she still talked to him sometimes after that. Rodriguez testified that a few days before appellant was arrested, he talked to her about Vasquez and told her Vasquez "had did him wrong." The day before appellant was arrested, appellant asked her to meet him at a Burger King restaurant, and she did so. According to Rodriguez, appellant told her he had shot Vasquez and the two other men because "nobody messes with him." Rodriguez stated she did not tell the police because she loved appellant and didn't think it was her business. Edith Santos, a criminal investigator for the Dallas County district attorney's office, testified she downloaded a recording of a January 2, 2009 telephone call made by appellant from jail. A copy of that telephone call was introduced into evidence. During that phone call, one of the parties stated, "Two dead, one alive." Appellant testified that on the date of the shooting at issue, he went to Vasquez's house sometime before 7 a.m. to "chill." He testified he was alone and did not have any weapons. He jumped the fence and knocked on the door. Also, he called Vasquez from his cell phone. According to appellant, while he was waiting for Vasquez to answer the door or phone, "a white car appeared across the street" and a man in the car whom appellant could not identify asked him if "Little Man" was there. Appellant believed the man in the car was referring to Vasquez. Appellant told the man in the car, "I'm trying to find out my own self." Appellant testified that by the time Vasquez answered his phone call, the man in the white car was already "down the block." Appellant stated he described the car to Vasquez over the phone and Vasquez told him the man in the car was "a thief." Then, Vasquez let appellant into the house. According to appellant, the two couches in the room were occupied by Hernandez, Anderson, and Vasquez. Appellant sat on the floor. Appellant testified Hernandez and Anderson slept while Vasquez and appellant watched the security monitor. Vasquez called his sister regarding the white car. Appellant stated he knew Vasquez sold drugs and knew him to have weapons in his home. Appellant testified he left the living room to use the restroom. Then, because the house had no running water, he went to the kitchen for some hand sanitizer. While in the kitchen, he decided to turn on the stove to warm the house. He testified that as he was doing so, "out of nowhere just gunfire started going off." Appellant stated he "panicked" and "hid behind the wall" in the kitchen. When the gunfire stopped, appellant testified, he "started going towards the dining room to make it to the living room to see what had happened." He stated he saw a gun on the floor in the dining room and picked it up. According to appellant, as he was standing up, he saw Vasquez "bump into a person that was covered up to not show his identity" and Vasquez and that person began wrestling. Vasquez told appellant, "Look out C." Appellant fired two shots from the gun, aiming toward the person Vasquez was "struggling with." Appellant testified the living room "was pretty much foggy from the smoke from the gunshots." He went into the living room and toward the front door. He saw that Hernandez had been shot and Anderson and Vasquez were "laying on the ground." Appellant testified he did not think about calling 911 because he was "unable to think properly." He "panicked" and "just ran" from the house, jumping the fence. As he reached a park down the street, he noticed he was still holding the gun. Appellant testified he went to a friend's house and smoked some marijuana. His friend gave him a black and gold duffel bag to put the gun in. Then, appellant accompanied another friend to a tattoo shop. Later that day, appellant met Rodriguez at Burger King. According to appellant, he told Rodriguez he shot Vasquez and the two other men because he was "trying to impress her." However, he testified, Rodriguez became upset. He stated that on a later occasion, he told her he was not telling the truth about shooting the three men. Appellant testified that on the day after the shooting, he asked a neighbor for a ride to a friend's house. While riding with his neighbor, he was apprehended by police. Appellant stated he saw only one individual in Vasquez's home besides Hernandez, Anderson, and Vasquez. According to appellant, that individual was "chunky" and about the same height as him and Vasquez. Appellant testified he did not shoot Hernandez or Anderson. He stated it is possible he shot Vasquez accidentally. II. SUFFICIENCY OF THE EVIDENCE A. Standard of Review
The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks, 323 S.W.3d at 899. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 899; see also King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) ("A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment."). B. Applicable Law
The Texas Penal Code provides in relevant part that a person commits murder if he "intentionally or knowingly causes the death of an individual." Tex. Penal Code Ann. § 19.02(b)(1) (West 2011). A person commits capital murder when he murders more than one person during the same criminal transaction. Id. § 19.03(a)(7)(A). C. Application of Law to Facts
Appellant contends the evidence is insufficient to show he was the person who shot either Anderson or Hernandez. According to appellant, "it is legally insufficient to show principal liability by mere presence at the scene of an offense" unless "the individual was the only person present at the scene in the window of time during which the offense was committed." Appellant asserts "all parties testified to the presence of at least one other man in the room during the shootings" and the gun used in the shootings "was held by multiple people." However, this is not a case in which the evidence is limited to appellant's "mere presence at the scene of an offense." Vasquez testified (1) appellant was the only person with a gun at the scene of the shooting at issue and (2) he saw appellant shoot at Anderson and Hernandez. Rodriguez testified appellant told her he shot Vasquez and the two other men. The law is well established that the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 899; King, 29 S.W.3d at 562. On this record, examining all the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found the essential elements of capital murder beyond a reasonable doubt. See Jackson, 443 U.S. at 319; cf. Ramirez v. State, No. 04-00-00496-CR, 2002 WL 808132, at *3 (Tex. App.-San Antonio May 1, 2002, pet. ref'd) (not designated for publication) (evidence was sufficient to prove defendant shot and killed victim in tavern where witness saw defendant approach victim with rifle, then heard several shots, and bullet found in defendant's van matched bullet fragments from victim). We decide appellant's two issues against him. III. CONCLUSION
Having decided against appellant on his two issues, we affirm the trial court's judgment.