Opinion
NO. 01-16-00533-CR
10-31-2017
SAUL SANTIAGO ACUNA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court Harris County, Texas
Trial Court Case No. 1445281
MEMORANDUM OPINION
A jury convicted appellant, Saul Santiago Acuna, of the offense of capital murder, and the trial court automatically assessed his punishment at confinement for life without parole. In his sole issue, appellant contends that the State failed to present sufficient evidence to support his conviction for capital murder because the State presented no evidence that appellant formed the intention to commit robbery prior to or during the murder. Appellant therefore requests that we reform the judgment to reflect a conviction for murder and remand the case for a punishment hearing.
See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2016).
We affirm.
Background
On the night of September 14, 2014, Guillermo Flores went to the Valero gas station at the corner of Mesa Road and Atascocita Road in Humble, Texas, to fill up some water bottles. While Flores was filling up the water bottles, a young man, later identified as appellant, approached him on foot. Appellant was wearing a hooded sweatshirt and had the hood pulled up over his head. Appellant asked Flores for a ride to the intersection of Beltway 8 and Old Humble Road. Flores testified that this was a "major red flag" for him because he knew that there was nothing at that location other than a Shipley Donuts and that the area was dark. Appellant repeatedly asked Flores for a ride, but Flores made several excuses to avoid this. During this exchange, Flores noticed the outline of something that looked like a gun in the front pocket of appellant's sweatshirt. Flores did not actually see appellant with a gun.
Police officers later showed Flores a photo-array containing appellant's picture, and Flores testified that he identified appellant as the person who approached him at the Valero "[a]s soon as [he] opened the folder" containing the photo-array.
Appellant attempted to help Flores place his water bottles in his car and continued to ask for a ride. Flores continued to make excuses, and then another car pulled up to the Valero. Flores suggested that appellant ask the driver of that car, the complainant, Gerardo Hernandez-Castaneda, for a ride. Appellant approached Hernandez and asked for a ride. Flores tried to signal to Hernandez not to give appellant a ride, but Hernandez told appellant that he was going to buy a few things inside the store and then he might give appellant a ride. Flores then left the Valero before Hernandez came back outside the store. The trial court admitted the surveillance video from the Valero into evidence, and this video shows appellant's encounters with both Flores and Hernandez. On the video, appellant can be seen gesturing in the direction of Beltway 8 and Old Humble Road, which was to the southwest of the Valero.
Several days later, after Hernandez had been murdered, Flores returned to the Valero to purchase gas. A Valero employee recognized Flores as the man with whom appellant had been speaking before appellant spoke to Hernandez, and he asked Flores for his phone number to pass along to the police. Flores gave his number, and he was eventually interviewed by police officers and shown the photo-array containing appellant's picture.
Chris Thompson and his girlfriend, Jessica Davis, were standing around the intersection of Beltway 8 and Old Humble Road on the night of September 14. Thompson heard a noise that sounded like fireworks coming from the rear of the Shipley Donuts located at that intersection, but because it was not the appropriate time of year for fireworks, this concerned him. He looked over and saw a dark-colored car and flashes. He then saw a figure standing up, and he noticed that this figure was pointing a gun at another person and not up in the air. Thompson did not hear an argument or any sounds of fighting before hearing the gunshots. He saw one person jump into a car and quickly pull away and the other person drop to the ground. Thompson approached the scene and saw a man with blood "all over" lying on the ground close to the curb along the road that ran behind the Shipley. He walked within three or four feet of the man, and he could not tell if the man was breathing. Thompson ran to a gas station across the street from the Shipley—which was closed at that time—and called 9-1-1.
Davis testified that she heard a sound around 10:00 p.m., and when she turned to look for the sound, she saw a flash behind the Shipley Donuts and heard a sound again. The flash illuminated the area, and she could see one man shoot another man, who fell down, and she saw the shooter jump into a car and quickly drive away. Davis stated that the two men were not standing close to each other when the second shot was fired. She did not hear any screaming or sounds of a fight before the gunshots.
Houston Police Department ("HPD") Officer K. Levi was taking a break inside a gas station on the other side of Beltway 8 from the Shipley Donuts when the shooting occurred. He did not hear the sound of gunshots. As he was getting back into his patrol car, he saw a Harris County ambulance drive past with its lights and sirens activated. The ambulance pulled into the gas station parking lot, and one of the paramedics informed Officer Levi that a shooting had occurred on the other side of the Beltway and asked Levi if he could lead them into the scene because Harris County Sheriff's Department deputies had not yet responded.
Officer Levi pulled into the Shipley Donuts parking lot and saw a Hispanic male, later identified as Hernandez, lying in the grass behind the Shipley Donuts with a gunshot wound to his head. Hernandez was still breathing at the time, but Officer Levi could see brain matter on the ground, and Hernandez was nonresponsive. After the paramedics took Hernandez to the hospital, Officer Levi searched the scene and saw a fired shell casing, a phone charger, a wallet, and a silver tool lying in the grass. The phone charger, wallet, and tool were all lying about two to three feet from Hernandez's body, and the wallet did not look as though anyone had rifled through it.
HPD Officer J. Nielsen, who was in the Crime Scene Unit at the time, processed the scene for evidence. Officer Nielsen photographed two large bloodstains at the scene, and he took swabs from both of these areas. He also photographed a fired cartridge casing, a pair of shoes, a phone charger, and a metal tool. The metal tool was lying next to one of the bloodstains near the curb. The other bloodstain was located in the street that ran behind the Shipley Donuts. Hernandez's wallet, also recovered from the scene, was intact and contained credit cards and $222.53 in cash.
Nelva Godwin lived on Galaxy Street, which is located southeast of both the Valero station and the murder scene. On September 24, 2014, ten days after Hernandez was shot, Godwin called HPD and reported a suspicious vehicle parked in front of an abandoned house on her street. The car had been sitting in front of the house for several days, and Godwin had not seen anyone stop by to move the car. She suspected that the car had been stolen.
HPD Officer J. Rhodes was dispatched to investigate this vehicle. He testified that the vehicle was a black Nissan Altima with no rear license plate. When he ran the car's VIN through the computer in his patrol car, the computer reflected that the car had been stolen "and it had a hit on it for a homicide." Officer Rhodes spoke with Godwin, who told him that the car had been there for approximately ten days. Officer Rhodes observed that the car had a bullet hole through the rear driver's side window. He contacted HPD's Homicide Division, which requested that he have the car towed to its evidence lot.
April Palatino, with HPD's Crime Scene Unit, examined the vehicle recovered from Galaxy Street and processed it for evidence. Palatino observed a bullet hole through the rear driver's side window, and she testified that the interior of the car had damage consistent with the trajectory of the bullet entering through the driver's side and striking the passenger side of the car. She did not recover a bullet or a shell casing from inside the car. She stated that it appeared that the bullet was fired from outside of the car and not inside the car. Palatino observed what looked like bloodstains on the car's steering wheel, the driver's sun visor, and a plastic ID-badge holder that was hanging from the rearview mirror. She took swabs from each of these bloodstains. She also took a swab from the car's gearshift, even though it did not have a bloodstain. The car did not have a license plate, although it appeared to Palatino that there had been a paper license hanging from the rear of the car that had been burned off. The rear bumper and area around the license-plate holder had burn marks. Palatino also observed that it appeared as though the radio was missing from the front dashboard.
Margarita Ramirez, Hernandez's girlfriend, testified that Hernandez had purchased a Nissan Altima shortly before his death. One of the upgrades that he had made to the car was to improve its radio and sound system. Ramirez lived about a half a mile from the Valero station at Atascocita and Mesa. She testified that Hernandez had spent most of September 14 with her, and he left her house sometime after 9:30 p.m. The following day, Ramirez's cousin called her to tell her about Hernandez, and Ramirez tried to investigate what had happened to him. She and her brother-in-law went to the Valero to see if Hernandez had been there, and the owner replied that he had, and he showed Ramirez the surveillance video. Ramirez saw Hernandez speaking with a man, and she saw that man get into Hernandez's car. Ramirez obtained a copy of the surveillance video and delivered it to the police.
David Suarez Hernandez, Hernandez's cousin, testified that he was with Hernandez when he purchased his car and that he gave Hernandez the stereo equipment that Hernandez then installed in the trunk of his car.
Sergeant C. Hassig, a member of HPD's Homicide Division, was assigned to investigate the shooting along with his partner, Officer T. Ferguson. Sergeant Hassig spoke with Ramirez, who identified Hernandez's vehicle. Sergeant Hassig then listed the vehicle as stolen, and approximately ten days later, he received a call that Officer Rhodes had located the vehicle. After the officers received the surveillance video from the Valero, they released the video to the public via local news stations to try to learn the identity of the suspect. Dr. Charles Ned, the principal of Humble High School, called the officers and stated that the suspect in the video was appellant, one of his students. The officers then created a photo-array containing appellant's picture and presented the array to Flores, who "fairly instantaneous[ly]" identified appellant as the person he had encountered at the Valero.
The day after the officers showed Flores the photo-array, they went to Humble High School to speak with appellant, and they conducted an interview with him at the Humble Independent School District Police Department. The trial court admitted a video recording of the officers' interview with appellant, which contained several inconsistent stories about what had occurred on September 14. Appellant initially told the officers that he did not believe he was at the Valero on September 14, but then he stated that he was "probably" there. Appellant stated that he walked home from the Valero and no one gave him a ride, but then he told the officers that he asked Hernandez for a ride, but Hernandez started going the wrong way and appellant asked to be let out of the car. Appellant stated that he got out of Hernandez's car at a market across the street from the Valero and walked home from there. Eventually, appellant admitted riding in the car with Hernandez to the Shipley Donuts, but he told the officers that, after he told Hernandez that he was going the wrong way, Hernandez started grabbing his hand and hitting him. Appellant stated that they both got out of the car at the Shipley, that Hernandez hit him in the head with something, and that Hernandez pulled a gun on him. Appellant admitted taking the gun from Hernandez, shooting him, and driving away in his car.
Anthony Argueta testified that in September 2014 he was the shop manager of Money Mart Pawn located on the North Freeway. Argueta testified that the Money Mart Pawn had a surveillance system, and the trial court admitted a copy of the surveillance video from September 15, 2014. The surveillance video depicted appellant and his cousin, Diego Rios, at the Money Mart Pawn on September 15 selling a radio and stereo system. Officer Ferguson entered Diego's name into a database used by pawnshops and police officers to monitor the sale of secondhand goods, and the officers recovered the radio and stereo system from the Money Mart Pawn. Hernandez's cousin identified the items as the radio and stereo system that Hernandez had installed in his car.
Appellant's cousins, Jose and Diego Rios, lived on Galaxy Street at the time of the shooting, as did appellant's grandmother. Jose testified that late at night on September 14, 2014, appellant arrived at his house "out of nowhere" with a gash on his head and asked Jose to take him to the hospital. Jose did not see how appellant arrived at the house, whether by car or on foot. Jose's mother refused to allow Jose to take appellant to the hospital because of the late hour, so she called appellant's parents. Appellant's parents then came to the Rios's house and took appellant to the hospital. Appellant was treated for a laceration to the head and a concussion, and he received several staples to close the laceration. According to appellant's medical records, he told medical personnel that he sustained the injury when a ladder hit him on the head.
Elizabeth Richey, a DNA analyst at the Houston Forensic Science Center, conducted the DNA analysis of several items of evidence collected in this case. Richey testified that Hernandez was excluded as a contributor to the DNA profile obtained from the bloodstain in the street behind the Shipley, the bloodstain on the steering wheel, and the bloodstain on the sun visor. Hernandez could not be excluded as a contributor to the bloodstain located in the grass outside the Shipley Donuts. Appellant could not be excluded as a contributor to the DNA profile obtained from the bloodstain in the street, the bloodstain on the steering wheel, and the bloodstain on the sun visor. Richey also testified that the metal tool that was recovered from the scene tested negative for the presence of blood, and although testing of the tool's handle revealed a mixture of DNA profiles, both Hernandez and appellant were excluded as the major contributor to that mixture.
Dr. Darshan Phatak, an assistant medical examiner, conducted the autopsy of Hernandez. Hernandez received two gunshot wounds: one to his head, and one to his right thumb. Dr. Phatak did not observe any evidence of soot or stippling around the entry wound on Hernandez's head. Dr. Phatak did observe soot embedded in the entry wound on Hernandez's thumb, indicating "that this part of the body was presented to the end of the barrel of the gun when it was fired."
Diego Rios testified on appellant's behalf and stated that he was not at his house when appellant came over on the night of September 14. He stated that, at some point, he learned that there was a car parked a few houses away from his house, and he took the radio and stereo system out of that car and burned the car's paper license plates. Diego testified that appellant was not with him at the time and that appellant did not know what he was going to do with the car and the items he had taken. Diego stated that he then picked appellant up from his grandmother's house, also on Galaxy Street, and asked appellant to come with him to help pawn the items because appellant was better at bargaining and conducting negotiations. He told appellant that he had gotten the items "from a crack head," and he did not tell appellant that he took the items from the car. Diego stated that he used his identification to pawn the items, and he testified that appellant had nothing to do with removing the items from the car.
On cross-examination, Diego admitted that he had previously told the police a different version of events. Diego stated that when he spoke with the police in October 2014, he told them that appellant was the one who brought the items from the car to Diego. Diego testified that he also told the police that appellant asked Diego to use his identification when they pawned the items. When viewing the surveillance video from the Money Mart Pawn, Diego admitted that appellant took the lead in negotiating the transaction and that, after Diego accepted the money from the store employee, he immediately handed it over to appellant, who handed a few bills back to him.
Appellant testified on his own behalf. Appellant stated that he had an argument with his father on the evening of September 14, two days after his eighteenth birthday, and he left his house on Duneberry Trail in Atascocita on foot and walked to a restaurant on Will Clayton. Appellant's father found him and they spoke, but appellant stated that he was still angry after his father left, and he decided to start walking "to blow some steam off." Appellant ended up at the Valero station, which he agreed was "quite a bit of a distance" from his house, and he stated that he walked inside the store and bought some chips. Because it was late, it was a school night, and it was "a distance" from the Valero to his house, he asked Flores, the first person he saw, for a ride. He testified that he did not give Flores a particular address. Appellant stated that he asked Flores twice and was refused both times, although after the second time appellant asked, Flores directed him to another person who had just arrived at the Valero. Appellant admitted that he was carrying a pistol that night, and he testified that it was concealed in a holster underneath his sweatshirt and was not visible from the outside. Appellant stated that he carried this pistol for protection and that he knew other people in his neighborhood who did as well.
Duneberry Trail is northeast of the Valero station at Atascocita and Mesa.
Appellant first spoke to Hernandez outside the Valero station and asked him for a ride. Both appellant and Hernandez entered the store, and appellant stated that he offered to pay for Hernandez's gas or food, but Hernandez declined. They then got into Hernandez's car, which "looked old" according to appellant, and appellant testified that he had no intention of stealing Hernandez's car. Appellant testified that, as Hernandez was driving, Hernandez reached over and started to touch appellant, first on his shoulder and then Hernandez attempted to touch him in a sexual manner. Appellant stated that he felt threatened and nervous, and he hit Hernandez's hand to make him stop. Appellant told Hernandez to pull over, and Hernandez pulled onto the driveway behind the Shipley Donuts.
Appellant testified that he jumped out of the car as soon as Hernandez pulled over and started quickly walking towards a gas station across the street from the Shipley. He stated that when he was walking he felt a hand on his shoulder, which turned him around, and then Hernandez hit him in the head with something heavy. Hernandez held onto the hood of appellant's sweatshirt and swung at him, and appellant stated that that was when he took out his pistol and fired in the direction of Hernandez's chest. Appellant testified that Hernandez dropped the tool, and when he reached for it again, appellant shot Hernandez a second time. Appellant noticed that, after the second shot, Hernandez was no longer coming after him, and he ran for Hernandez's car "to get away from him." He stated that he did not look around for anything to steal from Hernandez, but instead his "first thought was just to get away." He testified that he never had a plan to steal anything from Hernandez.
Appellant testified that he went to his cousins' house because "[t]hat's the closest place [he] could go," he had never been to a hospital by himself and was scared, and he "went to be with [his] family who could help [him]." Appellant drove to the street his cousins lived on and parked Hernandez's car down the street from their house. Appellant was still bleeding from his head wound when he arrived at his cousins' house, and his aunt called his parents, who took him to the hospital. Several days later, appellant threw the pistol into a little lake in the Humble area.
Appellant testified that he later told Diego that he arrived at their house in a car that he parked a few houses away, but he did not tell Diego anything else about the car.
Appellant also testified that he went to his cousins' house on the day after the shooting. Diego left the house, and when he came back, he asked appellant to go to a pawnshop with him because he had a stereo that he wanted to pawn. Appellant stated that Diego told him that he got the stereo from a "crack head," and he denied stealing the stereo from Hernandez's car, telling Diego to steal the stereo, or knowing that Diego had stolen the stereo.
Appellant further admitted that he lied to the police when he gave his statement to Sergeant Hassig and Officer Ferguson. He stated that he was scared and ashamed that he shot Hernandez and that Hernandez was "coming on to" him. Appellant admitted telling the following lies, among others, to the police: that he was not at the Valero; that he walked home from the Valero; that he went to the doctor on September 15 but just for a checkup; that he did not speak to Flores; that he was hit in the head with a ladder, which was how he cut his head; that he did not shoot anyone; that he did not have a gun; and that he wrestled Hernandez's gun away from him.
On cross-examination, appellant admitted that he purchased a gun from "some guy off the street," that he had been arrested in June 2014 in Stafford, Texas, for carrying that gun into a restaurant, and that he had been released from jail on bond for that offense when he bought another gun and when this incident occurred. Appellant stated that he asked Flores and Hernandez to take him home, and he did not point to Beltway 8 and Old Humble Road, but he instead pointed to his cousins' house. Appellant also admitted that he had told more than one version of the events of September 14. He further admitted that he had never told the police about Hernandez's trying to touch him inappropriately.
The charge instructed the jury on the law of self-defense and the lesser-included offense of murder, in addition to capital murder. The jury found appellant guilty of the offense of capital murder, and, because the State did not seek the death penalty, the trial court automatically assessed appellant's punishment at confinement for life without the possibility of parole. This appeal followed.
Sufficiency of the Evidence
In his sole issue on appeal, appellant contends that the State failed to present sufficient evidence that he committed capital murder. Although appellant acknowledges that sufficient evidence exists that he murdered Hernandez, he argues that the State failed to present sufficient evidence that he formed the intent to rob Hernandez before or during the commission of the murder. A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Griffin v. State, 491 S.W.3d 771, 774 (Tex. Crim. App. 2016). The jurors are the exclusive judges of the facts and the weight to be given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). The jury, as the sole judge of credibility, may accept one version of the facts and reject another, and it may reject any part of a witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Rivera v. State, 507 S.W.3d 844, 853-54 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd).
We may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); Leroy v. State, 512 S.W.3d 540, 543 (Tex. App.—Houston [1st Dist.] 2016, no pet.). We give great deference to the jury's credibility determinations. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Murray v. State, 457 S.W.3d 446, 448-49 (Tex. Crim. App. 2015) ("When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that determination."). Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper, 214 S.W.3d at 13. B. Capital Murder
To establish that appellant committed the offense of capital murder, the State had to prove that appellant intentionally caused the death of Gerardo Hernandez-Castaneda by shooting him with a deadly weapon while in the course of committing or attempting to commit the robbery of Hernandez. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2016); Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). "'[I]n the course of committing' is defined as conduct occurring during an attempt to commit, during the commission of, or in immediate flight from, the forbidden behavior." Griffin, 491 S.W.3d at 774-75; see also TEX. PENAL CODE ANN. § 29.01(1) (West 2011) (defining "in the course of committing theft" for purposes of robbery statute as "conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft").
Penal Code section 29.02 provides that a person commits the offense of robbery if, "in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property," the person intentionally, knowingly, or recklessly causes bodily injury to another. TEX. PENAL CODE ANN. § 29.02(a)(1) (West 2011). A person commits the offense of theft if he "unlawfully appropriates property with intent to deprive the owner of property." Id. § 31.03(a) (West Supp. 2016). "Appropriation of property is unlawful if . . . it is without the owner's effective consent." Id. § 31.03(b)(1).
For a murder to qualify as a capital murder committed in the course of a robbery, the defendant's intent to commit robbery must be formed before or at the time of the murder. Herrin v. State, 125 S.W.3d 436, 441 (Tex. Crim. App. 2002); Conner, 67 S.W.3d at 197; see Dawkins v. State, 495 S.W.3d 890, 895 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Section 19.03(a)(2) does not contain a general requirement that, to constitute capital murder, the murder must be committed to facilitate or in furtherance of the underlying felony offense. Griffin, 491 S.W.3d at 776. However, "[p]roof of robbery committed as an afterthought and unrelated to a murder is not sufficient evidence of capital murder." Conner, 67 S.W.3d at 197; Ibanez v. State, 749 S.W.2d 804, 807 (Tex. Crim. App. 1986) ("A killing and unrelated taking of property do not constitute capital murder under 19.03(a)(2).").
If, however, the State presents evidence from which the jury could rationally conclude beyond a reasonable doubt that the defendant formed the intent to obtain or maintain control over the complainant's property either before or during the commission of the murder, the State has proven that the murder occurred in the course of the robbery. Conner, 67 S.W.3d at 197; see also Shuffield v. State, 189 S.W.3d 782, 791 (Tex. Crim. App. 2006) (stating, in context of conducting harm analysis after determining testimony violated defendant's confrontation rights, that "[e]vidence is sufficient to support a capital murder conviction if it shows an intent to obtain or maintain control of property which was formed before or contemporaneously with the murder.") (emphasis in original). "This is true even where the element of appropriation occurred after the murder." Russo v. State, 228 S.W.3d 779, 793 (Tex. App.—Austin 2007, pet. ref'd) (citing Zimmerman v. State, 860 S.W.2d 89, 93 (Tex. Crim. App. 1993)). The jury may infer the requisite intent from the defendant's conduct. Conner, 67 S.W.3d at 197; see also Young v. State, 283 S.W.3d 854, 862 (Tex. Crim. App. 2009) (per curiam) (stating that State is not required to prove defendant completed theft from complainant to establish underlying robbery offense and that "requisite intent to rob may be inferred from circumstantial evidence, particularly the [defendant's] assaultive conduct"); Hall v. State, 970 S.W.2d 137, 141 (Tex. App.—Amarillo 1998, pet. ref'd) (stating that when determining defendant's intent, fact finder "is free to look to the conduct of the accused and make reasonable inferences therefrom").
In Cooper v. State, an aggravated robbery case, the Court of Criminal Appeals addressed whether evidence that the defendant committed a theft immediately after an assault was sufficient to establish that the assault was committed "in the course of committing theft," as required for a robbery conviction. See 67 S.W.3d 221, 222 (Tex. Crim. App. 2002). The Court of Criminal Appeals began its analysis by referring to several of its previous decisions in the capital murder context in which the court had addressed the issue of whether the State established that the defendant committed murder "in the course of committing robbery" if the State proved the robbery "occurred immediately after the murder." Id. at 223. It noted that it had previously held that "the nexus requirement for capital murder involving murder in the course of a robbery is the same as the nexus requirement in a robbery between the assault and the theft." Id. (citing Ibanez, 749 S.W.2d at 807). The court stated, "The general rule is still that a theft occurring immediately after an assault will support an inference that the assault was intended to facilitate the theft." Id. at 224. The court further held that this inference "will not be negated by evidence of an alternative motive that the jury could rationally disregard." Id. Although Cooper was an aggravated robbery case, the Court of Criminal Appeals has applied Cooper's holding in the capital murder context. See Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010) (noting, in holding that State presented sufficient evidence that murder occurred in course of committing robbery, that evidence showed "that money and jewelry were taken from the victim's home immediately after the victim was attacked"); Russo, 228 S.W.3d at 793 ("We conclude that the general rule stated in Cooper is applicable [in] capital murder cases where the offense was committed in the course of a robbery.").
Appellant acknowledges that the State presented sufficient evidence that he murdered Hernandez. He argues, however, that the State presented no evidence that a robbery or attempted robbery took place. He further argues that the State did not prove the required nexus between the alleged robbery and the murder because the State presented no evidence that he formed the intent to rob Hernandez prior to the murder. Appellant argues that he took Hernandez's car to flee the scene of the shooting "and later decided to pawn items retrieved from the car." Appellant points out that the State presented no evidence that appellant fired, or even displayed, his gun while inside Hernandez's car, and Hernandez's wallet, which contained over $200 in cash, was found at the scene. Appellant argues that the evidence raises an inference that he intended to lure Hernandez to the Shipley Donuts at Beltway 8 and Old Humble Road to murder him there, but not to rob him. The State argues that appellant's conduct before, during, and after the commission of the murder raises a reasonable inference that he formed the intent to rob Hernandez prior to or during the murder. We agree with the State.
The State presented evidence that on the evening of September 14, 2014, appellant armed himself with a loaded pistol which he concealed within his hooded sweatshirt. The evidence reflected that he approached the Valero on foot around 10:00 p.m. and asked Guillermo Flores for a ride. Although appellant testified that he asked for a ride home, Flores testified that appellant asked for a ride specifically to the intersection of Beltway 8 and Old Humble Road, which raised a "red flag" for Flores because he knew that there was a Shipley Donuts at that location and that the area was dark and isolated. The Valero surveillance video showed appellant gesturing westwards, in the direction of the Shipley, when he spoke with Flores and, later, with Hernandez. Neither the house at which appellant lived with his parents, which was located to the northeast of the Valero, nor appellant's cousins' house, which was located to the southeast of the Valero, was located in the direction in which appellant gestured.
Flores also testified that he could see the outline of what looked like a pistol in the pouch of appellant's hooded sweatshirt. He testified that appellant repeatedly asked him for a ride, even after Flores made excuses to avoid this, and appellant only ceased asking Flores for a ride after Hernandez pulled up to the Valero and indicated to appellant that he might be willing to give him a ride.
Chris Thompson and Jessica Davis both witnessed the shooting that occurred at the rear of the Shipley Donuts. Although they did not identify appellant as the shooter, they both testified that they heard a loud noise and that they witnessed one man shoot another man, a man drop to the ground, and the shooter jump into a dark-colored car and quickly leave the scene. Davis testified that the two men were not standing close together when the second shot occurred.
Officer Levi, the first officer at the scene of the shooting and the only officer to see Hernandez still at the scene, testified that Hernandez was lying on the grass and had been shot in the head. He saw a metal tool, a phone charger, Hernandez's wallet, and a pair of shoes all lying on the ground within two to three feet from Hernandez's body. These objects were all close to a bloodstain from which Hernandez could not be excluded as a contributor. A second bloodstain, from which appellant could not be excluded as a contributor, was located several feet away in the street that ran behind the Shipley Donuts. Although appellant was treated that night at a hospital for a head wound that required several staples to close, he told medical personnel that he had injured his head when he was hit with a ladder, which he later admitted was a lie.
Hernandez's girlfriend and cousin both testified that Hernandez had recently purchased a black 2002 Nissan Altima, and he had upgraded the radio and stereo system. Appellant admitted driving Hernandez's car to Galaxy Street, where appellant's grandmother and cousins lived, and abandoning the car a few houses down from his cousins' house. When Officer Rhodes recovered the car ten days after the shooting, he discovered a bullet hole in the rear driver's side window, and he observed that the radio was missing and that a paper license plate affixed to the rear of the car had been burned off. April Palatino, who processed Hernandez's car for evidence, testified that a bullet entered the car from the outside, that it passed through the rear driver's side window, and that it caused damage to the interior of the car before striking the front passenger side door and likely fragmenting. Palatino took swabs from bloodstains on the steering wheel, the driver's side sun visor, and a plastic ID-badge holder hanging from the rearview mirror. Appellant could not be excluded as a contributor to the bloodstains on the steering wheel and the sun visor.
The State also presented evidence that appellant and his cousin, Diego Rios, took the radio and stereo system from Hernandez's car to the Money Mart Pawn on the day after the shooting and received cash for the transaction. Appellant and Diego both testified that this endeavor was Diego's idea, that Diego told appellant that he received the radio and the stereo system from a "crack head," and that they conducted the transaction using Diego's identification. Diego testified that he was the one who removed the stereo system from Hernandez's car and that appellant was not involved and did not know the real place from which he obtained the items. Diego also admitted, however, that he had spoken with police officers in October 2014, and on that occasion, he told them that appellant arrived at his house with the radio and stereo system, that it was appellant's idea to pawn the items, and that appellant asked Diego to use his identification when they conducted the transaction at the pawnshop. Surveillance video from the Money Mart Pawn depicted appellant negotiating with the store employee, Diego handing over his identification, the employee giving the money for the items to Diego, Diego immediately handing the money over to appellant, and appellant giving a few bills back to Diego.
Furthermore, when he spoke with Sergeant Hassig and Officer Ferguson, appellant repeatedly changed his account of what had occurred on September 14—particularly when confronted with evidence that he had been at the Valero, that he had spoken with Flores, and that he had gotten in Hernandez's car—and he admitted at trial that he lied to the police during his interview. See Padilla, 326 S.W.3d at 201 (stating that rational fact finder could have found that defendant was "less than truthful about his involvement in the offense when he made the videotaped statement to the police" and that fact finder could have considered untruthful statements, in connection with other circumstances of case, as affirmative evidence of defendant's guilt). Appellant did not, at any point, tell the officers that Hernandez had tried to touch him in an unwanted sexual manner while they were in Hernandez's car, although, at trial, appellant testified that this was the impetus for his insisting that Hernandez pull the car over. Appellant was the only person to testify to what occurred inside Hernandez's car.
We conclude that, based on the evidence presented, a rational jury could have reasonably inferred beyond a reasonable doubt that appellant formed the intent to rob Hernandez prior to or during the commission of the murder. See Herrin, 125 S.W.3d at 441; Conner, 67 S.W.3d at 197. Appellant stole Hernandez's car immediately after he shot Hernandez, and he pawned the radio and stereo system located within the car the next day. See Cooper, 67 S.W.3d at 224 ("The general rule is still that a theft occurring immediately after an assault will support an inference that the assault was intended to facilitate the theft."); see also Padilla, 326 S.W.3d at 200 (applying holding from Cooper in context of capital murder case); McGee v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989) ("We have held numerous times that this aggravating element [murder in the course of committing robbery] is sufficiently proven if the State proves the robbery occurred immediately after the commission of the murder."). Although appellant argued at trial that his motivation for the shooting was self-defense after Hernandez made sexual advances towards him and hit him over the head with a heavy object, and he argues on appeal that the evidence only supports an inference that he intended to lure Hernandez to the Shipley Donuts to murder him but not rob him, the inference created by a robbery immediately following a murder "will not be negated by evidence of an alternative motive that the jury could rationally disregard." See Cooper, 67 S.W.3d at 224. Here, the jury could have rationally disregarded appellant's self-serving testimony that Hernandez attempted to touch him inappropriately while in the car and that Hernandez attacked appellant first by hitting him over the head as appellant attempted to leave the car on foot. See id.
We therefore hold that the State presented sufficient evidence from which a rational jury could conclude, beyond a reasonable doubt, that appellant murdered Hernandez in the course of committing robbery or attempted robbery and, thus, committed capital murder. See TEX. PENAL CODE ANN. § 19.03(a)(2); Griffin, 491 S.W.3d at 774-75 (defining "in the course of committing" as "conduct occurring during an attempt to commit, during the commission of, or in immediate flight from, the forbidden behavior").
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice Panel consists of Chief Justice Radack and Justices Keyes and Bland. Do not publish. TEX. R. APP. P. 47.2(b).