Opinion
01-21-00218-CR
01-19-2023
DOUGLAS HERRERA-HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 209th District Court Harris County, Texas Trial Court Case No. 1574285
Panel consists of Justices Goodman, Countiss, and Farris.
MEMORANDUM OPINION
GORDON GOODMAN, JUSTICE
Douglas Herrera-Hernandez appeals from his conviction for capital murder. He contends we must reverse his conviction because the trial court erred in (1) refusing to charge the jury on the lesser-included offense of murder and (2) admitting evidence about multiple other murders committed by others. We affirm.
BACKGROUND
A grand jury indicted Herrera-Hernandez for the offense of capital murder. See Tex. Penal Code § 19.03(a)(2). The indictment alleged that, while retaliating or trying to retaliate against Estuar Quinonez, Herrera-Hernandez intentionally killed Quinonez by shooting him with a firearm.
Herrera-Hernandez pleaded not guilty, and the State and defense then tried the charged offense to a jury. The State called twelve witnesses to testify:
• Valory Brown, who happened on the murder scene and found Quinonez's body while walking in a public park early one morning;
• Sergeant Adam Santos, a patrol supervisor with the Missouri City Police Department, who responded to the scene of the murder;
• Steven Baldwin, a crime scene investigator for the Missouri City Police Department, who helped process the evidence at the murder scene;
• Michelle Betenbaugh, a crime scene investigator for the Missouri City Police Department, who helped process the evidence at the murder scene;
• Dr. Mary Anzalone, an assistant medical examiner with the Harris County Institute of Forensic Sciences, who autopsied Quinonez's body;
• Detective Andrew Robb of the Criminal Investigation Division in the Missouri City Police Department, who investigated the murder;
• Nathan Gates, an investigator in the Digital Forensics Investigation Unit of the Harris County District Attorney's Office, who analyzed the cellphone service provider's data associated with Quinonez's phone;
• Sergeant Jose Duran, an investigator in the Gang Division of the Houston Police Department, who also investigated the murder;
• Deputy Mark Schmidt of the Harris County Sherriff's Office, the supervisor of its Street Gang Unit, Jail Gang Unit, and jail-related Intelligence Unit, who testified about jailhouse telephone calls;
• Sergeant Christopher Sturdivant of the Houston Police Department, who was then assigned to the Gang Murder Squad and investigated the murder;
• Officer Chris Levrier of the Houston Police Department, who at the time of the murder was assigned the Midwest Divisional Gang Unit and recovered two handguns used in the murder during a traffic stop; and
• Donna Eudaley, a firearms examiner with the Houston Forensic Science Center, who forensically examined the two handguns recovered.
The defense rested without calling any witnesses.
Brown was walking in Buffalo Run Park early one morning when she discovered Quinonez's body next to a bench. Blood was "everywhere on the ground." There also were "a lot of shell casings around." Brown called 911. The police arrived on the scene afterward.
Sergeant Santos was the first officer to arrive at the scene. When he saw Quinonez's body, there were "no signs of life." Santos said the scene showed that Quinonez's murder had been "overkill," in that he had sustained a lot of gunshot wounds-perhaps as many as twenty. Santos said he also saw the many shell casings that Brown had witnessed.
Within minutes, other officers arrived at the scene. Having secured the scene in the meantime, Santos then departed, as his shift had ended. Santos played no further role in the investigation of the murder.
Baldwin was one of those who later arrived at the scene. He was then employed as a crime scene investigator, which involves documenting, securing, and storing the evidence found at crime scenes.
Because of the size of the scene and the large amount of evidence, Baldwin was one of four crime scene investigators assigned to process the evidence. Baldwin took photographs of the scene, which were admitted into evidence. Among other things, he photographed Quinonez's body. The state of the body and the other evidence at the scene all indicated that it had been there for several hours, most likely overnight.
Shell casings were the majority of the evidence at the scene. Shell casings from different manufacturers were recovered, which indicated the possibility that multiple weapons were used in the murder. Twenty-five shell casings in total were recovered from the scene. The evidence also included fired bullets or bullet fragments. A total of sixteen bullets or bullet fragments were recovered. According to Baldwin, Quinonez had been shot twelve times.
Betenbaugh, one of the other crime scene investigators who processed the evidence recovered from the murder scene, also briefly took the stand. Her testimony focused on establishing that the evidence recovered from the scene had been properly labeled and stored after it was collected.
Dr. Anzalone is a licensed medical doctor and board-certified in anatomic, clinical, and forensic pathology. She performed an autopsy on Quinonez's body. Her autopsy report and its supporting documents, which included some of the photographs and x-rays that she took during the autopsy, were admitted into evidence.
Quinonez was sixteen years old when he died from multiple gunshot wounds. In total, Quinonez was shot eighteen times. He had six headshots, not counting a graze and a similar, but deeper wound on his nose. He had five additional gunshot wounds in his torso. He had one gunshot wound in his right back, another in his left buttock, and three more in his right arm.
Anzalone testified that she had no way to determine the order in which Quinonez sustained these gunshot wounds based on the medical evidence. At least three of the headshots he sustained definitely would have been fatal individually. Any one of the five gunshot wounds to Quinonez's torso also could have been fatal. Likewise, the gunshot wound to his right back would have been fatal as well.
Detective Robb was the lead investigator assigned to the case. He arrived at Buffalo Run Park after the murder scene had been secured by patrol officers but before the crime scene investigators had arrived.
Robb waited for the crime scene investigators to process the evidence. But based on the evidence that was readily visible at the scene, Robb concluded that multiple gunmen had ambushed and shot Quinonez.
Based on a prescription drug bottle found on the body, Robb tentatively identified the shooting victim as Quinonez. He or another law enforcement officer then followed up with Quinonez's family to confirm the victim's identity.
After Quinonez had been identified, two detectives from the Houston Police Department-Sergeants Sturdivant and Duran-joined the investigation. They did so because Quinonez, who was a member of a street gang known as MS-13, had been acting as a witness for them.
Due to crime in Buffalo Run Park, Robb had previously installed a surveillance camera in the park's parking lot. Barring a power outage or the like, this camera continuously records onto a departmental server. On the night preceding the discovery of Quinonez's body, the camera recorded the arrival of a distinctive automobile: a four-door, tan passenger vehicle with missing front hubcaps and blue-tinted headlights. The vehicle initially arrived around 9:20 p.m., and six people got out and entered the park. A little before 9:30 p.m., two people returned to the parking lot and drove away in the vehicle. At about 10:40 p.m., the vehicle returned to the lot. Three people then got out and entered the park. Approximately five minutes later, six people ran out of the park. They got into the tan passenger vehicle, which then left the park.
Robb testified that Sturdivant issued a description of the vehicle to patrol units. The day after the discovery of Quinonez's body in the park, Chris Levrier, an officer with the Houston Police Department, pulled the vehicle over in a traffic stop. Afterward, Robb, another Missouri City Police Department detective, and Sturdivant went to the scene of the stop. Two people were in the vehicle, Luis Gonzalez-Cruz and Darwin Lopez-Ramos. The police recovered two 9-millimeter handguns from the vehicle.
The next day, Robb interviewed Lopez-Ramos, and other law enforcement officers interviewed Gonzalez-Cruz. These interviews yielded further leads about the murder, including a list of suspects and the address of a Houston apartment where some of these suspects resided.
The police obtained a search warrant for the Houston apartment, which law enforcement searched the day after the aforementioned interviews. Seven people were in the apartment when it was searched, including the defendant, Herrera-Hernandez. During the search, officers found an unspent round of 9-millimeter ammunition of the same brand as some of the shell casings at the murder scene as well as an empty ammunition box that had been discarded in the trash.
Quinonez had a cellphone, but it was not present at the murder scene. Nor was his phone at Quinonez's home when officers contacted his family. Ultimately, law enforcement officers never found the phone.
Gates analyzed the service provider's records for Quinonez's phone. Among other things, the cellphone data for Quinonez's phone showed it was in the vicinity of Buffalo Run Park at 10:44 p.m. on the night before his body was found there. The data also showed the phone was near Houston's Galleria area soon after midnight.
Sergeant Duran, who has extensive law enforcement experience with the criminal street gang MS-13, testified that this common name is short for Mara Salvatrucha Trece. He described the gang as "a transnational criminal organization" that originated in Los Angeles, California. As a result of deportations from the United States during the 1980s, however, the highest ranks of the gang's leadership now reside in El Salvador.
Roughly a year before Quinonez's murder, MS-13 went to war with another Houston criminal street gang known as the Southwest Cholos. The war began when one of the Cholos killed an associate of MS-13. In response, MS-13 killed several members of the Southwest Cholos.
Duran first became acquainted with Quinonez after Quinonez was shot in the arm in a gang-related shooting and hospitalized. When Duran interviewed Quinonez after the shooting, Quinonez began providing information about several gang-related murders relating to the MS-13/Cholos war.
At the time, Quinonez was sixteen years old. Despite his youth, Quinonez was a "homeboy"-an MS-13 rank indicating full gang membership-in a "clique," which is a small unit of MS-13 members and associates that resides in and controls a particular neighborhood.
Herrera-Hernandez was another "homeboy" within the same clique as Quinonez. Herrera-Hernandez's "moniker"-the street name by which he was known to other MS-13 members-was "Terror."
Duran testified that MS-13 does not allow its members to kill other members for infractions without permission from the gang. In particular, if the leadership of a clique believes it has cause to kill one of its own members, the clique must first obtain permission from gang leadership in El Salvador.
On cross-examination, Duran agreed that an MS-13 member who fails to follow an order issued by the gang can suffer consequences. These consequences can include death. In particular, Duran agreed that a member's failure to follow an order to kill another member for an infraction of the gang's rules can result in the refusing member's own death.
Deputy Schmidt testified about the Harris County Jails' inmate telephone system, which records all calls. Upon request an officer pulled the calls of Omar Torres, who was then in jail and was "the second word"-the title for the second in command-of the MS-13 clique in which Quinonez and Herrera-Hernandez were members. The State introduced transcripts of these calls into evidence.
In these calls, Torres told his wife that "a kid" or the "animal who likes cheese" (apparently meaning a rat) had falsely implicated him in three murders, and Torres identified this kid or animal in code as "Unshameful," which was Quinonez's moniker or street name within the gang. Torres instructed his wife to convey this information to "Kelvin," who was to pass this information on to others, including "Terror," who would "already know what to do with that animal that likes cheese." In a later conversation with another, Torres explained that law enforcement officers had played a recording for him in which "Unshameful" stated that Torres was involved in the three murders. Torres explained that "Unshameful" had said so as part of a deal he had made with law enforcement. In another call with his wife, Torres said law enforcement would want "Unshameful" to testify against Torres as part of that deal.
Finally, in a telephone call placed the same day that Quinonez's body was found in Buffalo Run Park, Torres had a conversation with Kelvin Hernandez, his stepson, who was a "paro"-a gang rank two tiers below "homeboy" that essentially performs errands-in another MS-13 clique. In this conversation, they had the following exchange:
Kelvin: Those guys already worked on that deal. Understand?
Torres: What?
Kelvin: They already worked that, that [unintelligible] and just them.
Torres: Hold on, because I can't hear you well. What did you say?
Kelvin: Those dudes already did the work with that-that other guy.
Torres: They already worked?
Kelvin: Yeah.
Torres: They went to work?
Kelvin: [unintelligible]
Torres: With whom?
Kelvin: You don't understand me, dude. With that dude, that animal you said.
Torres: It's already going?
Kelvin: Done.
Torres: Alright. Today?
Kelvin: Today, dude, today. The dude appeared there, at the park on eight, where, where the homeboy [unintelligible].
Torres: Uh-huh.
Kelvin: There dude, well, yeah . . . I spoke with Darwin and oh well [unintelligible].
Torres: Yeah?
Kelvin: Yeah.
Torres: Alright.
Kelvin: We already [unintelligible].
Torres: Did they work with the animal?
Kelvin: Yes.
Torres: Alright. How did the work turn out? Everything okay?
Kelvin: Fine, dude uh, but [unintelligible] this morning.
Torres: Alright.
Kelvin: Uh, the thing is that his-his brother called me, [unintelligible]. He just asked me if I had . . . if I knew
something about that. But I didn't know until this morning when he told me because he said that they had found him over there today. I told him no, that I hadn't seen him in about four days. He said, "Alright. Pass my number to my locos to see what, what we are going to do about it." I told him, "Alright, that's fine." Understand?
Torres: Alright. That's fine.
Sergeant Sturdivant testified that when he became involved with the investigation into the murder of Quinonez, he had already been investigating the gang-related murders of five members of the Southwest Cholos gang who he believed had been killed by MS-13. Sergeants Sturdivant and Duran had been investigating these five murder cases together.
According to Sturdivant, the Southwest Cholos and MS-13 became embroiled in a gang war in southwest Houston. Like Duran, Sturdivant believed the cause of the war was the murder of an MS-13 associate a year or so before Quinonez was murdered. Over the course of the next four months after the MS-13 associate was slain, five associates of the Southwest Cholos were ambushed and killed. Various information led Sturdivant to believe that MS-13 was "systematically assassinating Southwest Cholos," but Sturdivant did not yet have enough evidence to file any charges.
A little more than a month after the fifth assassination, Sturdivant went to the scene of another gang-related shooting. Two people had been shot, one of whom was Quinonez, who had a gunshot wound in the arm. Sturdivant spoke with Quinonez multiple times afterward. During an interview conducted by Sturdivant and Duran, Quinonez gave them valuable information about the five murders of the Southwest Cholos. Quinonez identified several MS-13 members as suspects in the first two murders. He also corroborated the suspected motive for the shooting: retaliation for the murder of an MS-13 associate by the Southwest Cholos.
In later interviews, Quinonez gave the investigators additional information about the murders. He gave further information about the first two murders as well as the three that followed, once again identifying MS-13 members as suspects. Of particular note, Quinonez told the investigators that Omar Torres drove the MS-13 members who committed the third and fifth murders to the scenes of those crimes. Quinonez described Torres as playing the role of director and driver in these two murders. That is, Torres facilitated the commission of these murders.
The information that Quinonez supplied led investigators to arrest and charge several MS-13 members with murder, including Torres. Sturdivant described the information that Quinonez gave as a witness as being "instrumental" in making all these arrests and charges. Quinonez effectively had "cut off the heads" of two different cliques, including the one to which he belonged, by sending their leaders to jail. After the arrests, the instant defendant, Herrera-Hernandez, was "one of the most senior individuals left on the street" in terms of his own particular MS-13 clique.
Quinonez later appeared before a grand jury. The transcript of his grand jury testimony was admitted into evidence and read aloud to the jury in this case. As in his interviews with investigators, Quinonez testified before the grand jury that several MS-13 members, including Torres, participated in the murders of the five Southwest Cholos as well as a sixth one. Less than a week after Quinonez testified, his body was found in the park.
Sturdivant was notified about the murder of Quinonez and arrived at the scene after other law enforcement officers had already arrived and secured it. Under the circumstances, Sturdivant said he immediately knew that "this was a retaliation killing" resulting from Quinonez's role as a witness.
The Houston Police Department began its part in the ensuing murder investigation by securing and listening to the recordings of the phone calls of MS- 13 members who were in jail. During Sturdivant's testimony, the transcripts of the recordings of Torres's calls that had previously been admitted into evidence were read aloud in part to the jury-interspersed with explanatory clarifications about the meaning of the phone conversations.
As a result of the investigation, law enforcement officers soon arrested multiple people affiliated with MS-13, who were then charged with capital murder for killing Quinonez in retaliation for informing on the gang. Not long afterward, an arrest warrant for capital murder was also issued for the defendant, Herrera- Hernandez, but the authorities had lost track of his whereabouts by that time. About a year later, the authorities found Herrera-Hernandez in Virginia, where he was arrested. While Herrera-Hernandez was in jail in Virginia, Sturdivant and others flew there to interview him.
Herrera-Hernandez's interview with Sturdivant was recorded and transcribed. The transcript of the interview was admitted into evidence, subject to a limiting instruction concerning wrongful acts other than the murder of Quinonez, and it was read aloud before the jury.
After being Mirandized, Herrera-Hernandez told Sturdivant that he was a "homeboy" in MS-13. As a member of the gang, Herrera-Hernandez was aware of the Houston war between MS-13 and the Cholos, in which MS-13 had slain several Cholos in reprisal for the killing of an associate.
Herrera-Hernandez knew Quinonez for about a year before the gang killed him. Omar Torres told his stepson, Kelvin, that Quinonez had been talking to the police, and another gang member-Lopez-Ramos-then told Herrera-Hernandez. According to Herrera-Hernandez, Lopez-Ramos told him that Quinonez "is the snitch" and had "to be killed." Herrera-Hernandez agreed to do so, stating that he "told them it was fine then, that we were going to assassinate him." But Herrera-Hernandez explained that he agreed to participate in the murder of Quinonez because he "didn't want to look bad" in front of his fellow gang members. He further explained that he agreed to participate in the murder of Quinonez because he knew that if he did not do so, "they were also going to kill" him "for not taking part in that."
After Lopez-Ramos told Herrera-Hernandez about Quinonez, Herrera-Hernandez telephoned a high-ranking MS-13 leader in El Salvador to discuss the situation involving Quinonez and obtain permission to kill him. According to Herrera-Hernandez, the El Salvadoran told him that the gang "had to kill" Quinonez and that, if they did not kill him, "the Barrio was going to deal with" them for failing to do so. It fell to Herrera-Hernandez to make this telephone call because he was the highest-ranking member of his clique who was not then incarcerated due to Quinonez's cooperation with the police.
Herrera-Hernandez told his roommates, who were members of another MS- 13 clique, that he had received permission to kill Quinonez from El Salvador. It took about a week after that for them to arrange Quinonez's murder. Two members lured Quinonez to Buffalo Run Park, where Herrera-Hernandez and several others were waiting to ambush him. During his interview with Sturdivant, Herrera-Hernandez confessed that he was present at the murder and, like all of the other gang members present, he shot at Quinonez. While they were shooting Quinonez, one of the others yelled that they were shooting Quinonez "for being a snitch."
On cross-examination, Sturdivant agreed that Herrera-Hernandez said he was afraid of the gang during the Virginia interview. But Sturdivant expressed skepticism about Herrera-Hernandez's fear. When asked whether he was telling the jury that there could not be deadly consequences for refusing to obey a gang order, Sturdivant replied, "No, I'm not telling the jury that. I think it's a case-by-case basis and it requires a lot of speculation."
Officer Levrier was the one who stopped the tan passenger vehicle identified by way of Sturdivant's Buffalo Run Park surveillance camera. He encountered the vehicle the day after Quinonez's body was found in the park and made a traffic stop after witnessing it change lanes without signaling. When Levrier spoke to the driver, the vehicle smelled of marijuana. In the ensuing search of the vehicle, Levrier found clothing that was the distinctive blue color worn by members of MS-13 as well as two handguns.
Eudaley examined the two 9-millimeter handguns recovered from the vehicle. She test-fired these two handguns and compared the bullets and casings from these test-fires to the bullets and casings recovered from the murder scene. Based on these tests, Eudaley determined that both handguns had been used in the murder of Quinonez. These two handguns, however, did not account for all of the crime-scene firearms evidence; she opined that at least three other handguns were used in the murder.
After both sides rested, the trial court held a charge conference. Herrera-Hernandez requested that the jury charge include the lesser-included offense of murder in addition to the charged offense of capital murder. He reasoned that he was entitled to this instruction based on the statements he made during his interview to the effect that he only participated in the murder out of fear that the gang would kill him if he did not participate, rather than for the purpose of retaliating against Quinonez for being a witness against the gang.
The State objected to the inclusion of the lesser-included offense in the jury charge. The prosecutor explained, "It's very clear that the reason for this murder was in retaliation, and whether or not he had some ulterior additional motive is not relevant." According to the State, due to the applicability of the law of the parties, under which Herrera-Hernandez could be guilty for an offense committed by the other participants in the shooting, the lone circumstance in which Herrera-Hernandez "could not be guilty of capital [murder] and guilty of murder is if he did not know that [Quinonez] was a witness," such that Herrera-Hernandez "did not know" the gang was killing Quinonez in retaliation for it.
The trial court denied Herrera-Hernandez's request to instruct the jury on the lesser-included offense of murder. Instead, the trial court solely charged the jury as to the offense of capital murder. In addition to instructing the jury that it could find Herrera-Hernandez guilty of capital murder as a principal (actual perpetrator), the trial court instructed the jury on the law of the parties, stating that it could also find him guilty if he acted with the intent to promote or assist the commission of capital murder and solicited, encouraged, directed, aided, or attempted to aid others to commit the offense.
The jury found Herrera-Hernandez guilty of capital murder, as charged in the indictment. In accord with the jury's verdict, the trial court rendered a judgment of conviction and assessed Herrera-Hernandez's punishment as life without parole. See Penal § 12.31(a)(2) (mandating punishment of life without parole upon conviction for capital felony when State does not seek death penalty and defendant was 18 years of age or older when he committed charged offense).
Herrera-Hernandez appeals.
DISCUSSION
I. Jury charge: trial court's refusal to include lesser-included offense
The State indicted and tried Herrera-Hernandez for capital murder. The aggravating element-the circumstance elevating the offense from murder to capital murder-was retaliation. Specifically, the State alleged Herrera-Hernandez participated in the murder of Quinonez because Quinonez was a witness who testified against other members of the street gang to which they both belonged.
Herrera-Hernandez contends the trial court erred in denying his request for the jury to be instructed on the lesser-included offense of murder. He maintains he was entitled to this jury instruction because the record contains evidence that he only committed murder because the street gang to which he belonged ordered him to participate in the murder or else the gang would kill him. In other words, Herrera-Hernandez maintains there is some evidence he had a non-retaliatory motive.
A. Standard of review and applicable law
We apply a two-prong test to decide whether a defendant is entitled to a jury instruction on a lesser-included offense. Wade v. State, 2022 WL 1021056, at *3 (Tex. Crim. App. Apr. 6, 2022). First, we determine as a matter of law whether the offense at issue is truly a lesser-included offense. Id. Second, we determine whether there is some evidence in the record establishing that, if the defendant is guilty, he is guilty only of the lesser-included offense. Id. That is, the evidence must show that the lesser-included offense presents the jury with a valid, rational alternative. Id.
The second prong is relatively easily satisfied. Id. Whatever the strength or weakness of the evidence, if more than a scintilla of evidence, from any source, raises the issue that the defendant is guilty of only the lesser-included offense, then he is entitled to a jury instruction. Id. We consider all the evidence admitted at trial, and the defendant's testimony alone may suffice to establish entitlement to the instruction. Id. We view the evidence in the light most favorable to submission of the instruction, not in the light most favorable to the verdict. Id. We evaluate the evidence in the context of the entire record, but we do not consider whether the evidence is credible, controverted, or conflicts with other evidence. Id.
However, when a crime involves multiple perpetrators, we must take into account the law of the parties in considering whether the evidence raises the issue that the defendant is guilty of only a lesser-included offense. Yzaguirre v. State, 394 S.W.3d 526, 527-30 (Tex. Crim. App. 2013). Under the law of the parties, a defendant is criminally responsible for the conduct of other persons if he acts with the intent to promote or assist in the commission of the offense and solicits, encourages, directs, aids, or attempts to aid the others committing the offense. Penal §§ 7.01, 7.02(a)(2). So, when the law of the parties applies, the fact that the defendant did not himself commit the offense in question is immaterial to his guilt, and he is not entitled to an instruction on the lesser-included offense. See id.; Yzaguirre, 394 S.W.3d at 531.
B. Analysis
As to the first prong, murder is a lesser-included offense of capital murder as a matter of law. Smith v. State, 297 S.W.3d 260, 275 (Tex. Crim. App. 2009). So, we must consider whether the evidence at trial established that murder presented a valid, rational alternative to capital murder. See id. (first prong of test is satisfied because murder is lesser-included offense of capital murder). Accordingly, we now turn to the second prong, which concerns the evidence.
In this case, the distinction between murder and capital murder consists of whether Herrera-Hernandez participated in the murder in the course of committing or attempting to commit retaliation. Penal §§ 19.02(b)(1), 19.03(a)(2). Retaliation includes intentionally or knowingly harming or threatening to harm by an unlawful act a witness on account of his status as a witness or to prevent or delay his service as a witness. Id. § 36.06(a); see also Ortiz v. State, 93 S.W.3d 79, 86-87 (Tex. Crim. App. 2002) (construing retaliation statute in context of capital-murder case).
Given the distinction between murder and capital murder, for Herrera-Hernandez to be guilty only of murder, a jury would have to find that he murdered Quinonez for some reason other than the latter's status or service as a witness. That is, the jury would have to find that Herrera-Hernandez committed murder for some reason other than retaliation. See Schmidt v. State, 278 S.W.3d 353, 361-64 (Tex. Crim. App. 2009) (holding defendant was entitled to lesser-included offense instruction because record contained more than scintilla of evidence that defendant committed crime for reason other than retaliation); see also Stewart v. State, 137 S.W.3d 184, 188-89 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (indicating that whether defendant commits murder on account of victim's status or service is question of retaliatory motive); Glassey v. State, 117 S.W.3d 424, 432-34 (Tex. App.-Fort Worth 2003, no pet.) (stating that for defendant to be entitled to instruction on lesser-included offense of attempted murder, it had to be possible for jury to rationally reject offense of attempted capital murder by finding defendant committed only offense of attempted murder, but not aggravating element of retaliation). Thus, the question we must answer here is whether there is any evidence in the record that Herrera-Hernandez committed murder for a reason other than because Quinonez was a witness. See Schmidt, 278 S.W.3d at 361-64.
Herrera-Hernandez argues that the record contains evidence that he committed murder for a non-retaliatory reason-namely, to avoid being killed by the gang himself for refusing to follow its order to kill Quinonez. On this point, we agree with Herrera-Hernandez. In his interview with Sergeant Sturdivant, Herrera-Hernandez unambiguously stated that he agreed to murder Quinonez because otherwise the gang would kill him for refusing. Moreover, by the time the jury heard the interview, Sergeant Duran had already testified that the consequences for refusing to follow an order to kill a fellow gang member could be death. Sturdivant likewise conceded that death was a possibility for refusing to carry out such an order. Viewed in the context of this record, Herrera-Hernandez's interview contains some evidence that he personally committed murder for a non-retaliatory reason. See Schmidt, 278 S.W.3d at 361-64 (testimony to the effect that defendant physically struck victim due to problems in their romantic relationship, rather than in retaliation for statement victim had given to police, entitled defendant to jury instruction on lesser-included offense).
Hence, Herrera-Hernandez ordinarily would be entitled to the jury instruction he requested. See id. But the involvement of multiple perpetrators in the homicide and the law of the parties alters the outcome in this instance. See Penal § 7.01(a) ("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 for which he is criminally responsible, or by both."); Zapata v. State, 449 S.W.3d 220, 226-27 (Tex. App.- San Antonio 2014, no pet.) (prosecutions of crimes with more than one perpetrator implicate law of parties, which expands criminal responsibility of defendant based on conduct of others and may disentitle defendant to instruction on lesser-included offenses).
In his interview, Herrera-Hernandez also stated that another gang member told him that Torres had identified Quinonez as a snitch who had to be killed. Consistent with MS-13's rules about killing a member, Herrera-Hernandez telephoned leadership in El Salvador to discuss the issue and obtain permission to kill Quinonez. After obtaining permission to do so, Herrera-Hernandez, in turn, informed other gang members that he had obtained the required permission. Then, a week or so later, Herrera-Hernandez and several other gang members shot Quinonez dead. As they did so, one yelled that they were doing so because Quinonez was a snitch.
Thus, regardless of the reason Herrera-Hernandez participated, the evidence at trial showed that he knew the gang desired to murder Quinonez due to his role as a witness against several gang members, and Herrera-Hernandez intentionally aided in the commission of this crime by obtaining permission to kill Quinonez from superiors, telling other gang members that he had obtained this permission, and shooting at Quinonez while several other gang members did so, at least one of whom voiced that they were killing Quinonez in retaliation for him being a witness. Under these circumstances, Herrera-Hernandez is criminally responsible for the retaliatory capital murder of Quinonez because he acted with the intent to promote or assist the commission of this crime and aided others to commit it. See Penal § 7.02(a)(2). That is, the evidence at trial showed that Herrera-Hernandez, if guilty, could only be criminally responsible for capital murder, regardless of whether the reason he personally chose to participate was retaliatory or non-retaliatory. See id. The law of the parties excludes the possibility that the jury could have merely found Herrera-Hernandez guilty of murder, rather than retaliatory capital murder, and disentitled him to a jury instruction on the lesser-included offense of murder. See id.; Yzaguirre, 394 S.W.3d at 531; see also Brooks v. State, 590 S.W.3d 35, 51-53 (Tex. App.- Houston [1st Dist.] 2019, pet. ref'd) (affirming trial court's refusal to instruct jury on lesser-included offense of murder in capital-murder prosecution due to defendant's criminal responsibility for another's conduct under law of parties).
We overrule Herrera-Hernandez's first issue.
II. Evidence: other murders committed by other gang members
Herrera-Hernandez contends that the trial court erred in admitting evidence that other members of MS-13, the street gang to which he belonged, had murdered five members of a rival gang. He maintains this evidence was inadmissible because its probative value was substantially outweighed by the danger of unfair prejudice.
A. Standard of review and applicable law
We review a trial court's evidentiary rulings, including a ruling admitting evidence over an objection that the evidence's probative value is substantially outweighed by the danger of unfair prejudice, for an abuse of discretion. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). A trial court abuses its discretion when its ruling is outside the zone of reasonable disagreement. Id.
Under Rule 403 of the Texas Rules of Evidence, a trial court "may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." The language of this rule reflects a presumption that relevant evidence will be more probative than prejudicial. Hernandez v. State, 390 S.W.3d 310, 323 (Tex. Crim. App. 2012).
Probative value refers to relevance-how strongly a piece of evidence serves to make more or less probable the existence of a fact of consequence to the suit- coupled with the offering party's need for the evidence. Id. While unfair prejudice refers to the tendency to suggest that decisions may be made on an improper basis, often an emotional one. Id. at 323-24. For example, evidence may be unfairly prejudicial if it arouses a jury's hostility or sympathy for one side without regard to its logical probative force. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). However, in general, all evidence is prejudicial to one party, and Rule 403 applies only when there is a clear disparity between the degree of prejudice of the offered evidence and its probative value. Hernandez, 390 S.W.3d at 324.
Ultimately, the trial court's ruling must be reasonable in view of all the relevant facts. Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). But as an appellate court, we must remember that Rule 403 gives the trial court wide latitude in assessing whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice. Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim. App. 2007). We cannot substitute our judgment for the judgment of the trial court, which sees and hears the evidence firsthand. Gonzalez, 544 S.W.3d at 370; State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). It is rare that we will be justified in reversing the trial court's balancing of probativeness and unfair prejudice. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).
B. Analysis
Herrera-Hernandez's appellate complaint is general. Without identifying specific testimony or other items of evidence about which he complains, Herrera- Hernandez argues that the trial court erred in not excluding any mention of murders committed by members of MS-13, other than the murder for which he was being tried-the murder of Quinonez. Based on the record, we reject this argument.
In this capital-murder case, the State's theory was that Herrera-Hernandez had murdered Quinonez in retaliation for being a witness. In his service as a witness, Quinonez had first given the police information about several murders committed by other members of MS-13 in a conflict with a rival gang, and he then testified before a grand jury about these gang murders. As a result, the police arrested several MS-13 members, and a grand jury later indicted them. At trial, it was undisputed that Herrera-Hernandez was not involved in these other gang-related murders.
Though motive is not an element of any given offense, evidence of motive is nonetheless highly relevant because it explains the defendant's alleged criminal conduct and is therefore a significant circumstance indicating guilt. Colone v. State, 573 S.W.3d 249, 267 (Tex. Crim. App. 2019). In this case, however, the alleged reason for the murder-retaliation for Quinonez's service as a witness with respect to several other murders committed by MS-13-is what elevated the offense from murder to capital murder. See Penal §§ 19.02(b)(1), 19.03(a)(2). Thus, these other murders, and Quinonez's role as a witness, were especially probative. Without evidence of these other murders, the State would have at best had a very difficult time explaining to the jury how the murder of Quinonez was retaliatory in nature.
Nor was the evidence of these other gang-related murders unfairly prejudicial. Herrera-Hernandez was not personally implicated in these other murders. Evidence of these other murders was prejudicial only in that it generally portrayed MS-13 and its members as murderous. But other evidence independently established that the gang was murderous, including Herrera-Hernandez's own interview statement that he feared the gang would kill him if he disobeyed its order to kill Quinonez. Moreover, all the key figures involved were members of MS-13: the victim, the defendant, and the several other persons who committed this murder all belonged to the gang. Thus, to the extent the evidence reflected poorly on MS-13, it did not prejudice the defendant alone, which lessened its prejudicial impact somewhat by casting both the murder victim and the perpetrators in an unflattering light.
Importantly, one of Rule 403's underlying purposes in criminal prosecutions is to provide for the exclusion of evidence when necessary to prevent a jury that has reasonable doubt about a defendant's guilt from convicting anyway based on his commission of or association with other bad acts. Garcia v. State, 201 S.W.3d 695, 704 (Tex. Crim. App. 2006). Here, however, there was no danger of wrongful conviction. In his interview with Sturdivant, Herrera-Hernandez confessed his involvement in the murder of Quinonez as well as his awareness that the gang had sanctioned the murder in retaliation for Quinonez's cooperation as a witness. Given the overwhelming evidence of Herrera-Hernandez's guilt, there is no reason to believe the jury had reasonable doubt about his guilt but decided to find him guilty anyway on the basis that he belonged to a gang that had committed other murders.
Under these circumstances, we cannot say the trial court abused its discretion in ruling that the probative value of the evidence of these other murders was not substantially outweighed by the danger of unfair prejudice. See id. (court of appeals erred in holding probative value of evidence was substantially outweighed by danger of unfair prejudice given that record showed there was no reason to believe jury had reasonable doubt but convicted defendant anyway based on evidence at issue); Medina v. State, 7 S.W.3d 633, 643-44 (Tex. Crim. App. 1999) (witness's testimony about earlier altercation involving defendant in capital-murder prosecution was not unfairly prejudicial/inadmissible under Rule 403, given that its prejudicial aspects- defendant was gang member who had violent grudge against rival gang, carried a handgun, and did not hesitate to threaten others with it-were established elsewhere in the record); see also Vasquez v. State, 67 S.W.3d 229, 239-40 (Tex. Crim. App. 2002) (holding evidence of defendant's affiliation with gang was not unfairly prejudicial/inadmissible under Rule 403 in that it was relevant to show defendant's motive for committing gang-related crime and citing Medina as holding that gang's extraneous acts are relevant to show defendant's motive to commit offense).
We overrule Herrera-Hernandez's second issue.
CONCLUSION
We affirm the trial court's judgment.