No. 05-03-01729-CR
Opinion Filed October 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court Dallas County, Texas, Trial Court Cause No. F02-00756-UH. Affirm.
Before Justices WRIGHT, RICHTER, and MAZZANT.
WRIGHT, Justice.
A jury convicted Vincent Edward Aguirre of capital murder. The trial court assessed punishment at life imprisonment and made an affirmative finding that appellant used or exhibited a deadly weapon, a firearm, during the commission of the offense. In a single point of error, appellant contends the evidence is factually insufficient to support the conviction. We affirm.
Background
Herman Barajas and Nora Vasquez lived at 4014 Falls Drive. On February 28, 2002, Christina Jimenez was at the residence for an overnight visit. Sometime that day, appellant and Maria Gaytan went to 4014 Falls Drive. They were driving Gaytan's van. Appellant went inside the residence for about ten minutes. When he returned to the van, appellant directed Gaytan to drive to a specific intersection so he could meet a man whom appellant had just telephoned. When the man pulled up in his car, Gaytan got out of the van, stating she "didn't want no part of this." Gaytan drove the other man's vehicle to the house of a friend who lived up the street from 4014 Falls Drive. Gaytan testified she used the bathroom at the friend's house then went outside to go home. She saw a police car heading in the direction of 4014 Falls Drive. Gaytan testified she telephoned police and reported her van as stolen so she would not be implicated in whatever had happened at 4014 Falls Drive. Sometime between 11:00 p.m. and midnight, Maria Delafuente, who lived across the street from 4014 Falls Drive, was awakened by a sound outside. She looked out the window and saw appellant get out of a van that was parked in front of her house, walk to the front door of 4014 Falls Drive, fire two shots at the door, kick open the door, then go inside. Delafuente heard two more gunshots, then saw appellant come outside to the van. Appellant had a gun in his hand and was holding something under his shirt. Delafuente heard appellant saying "Where? Where?" to someone inside the van. Then appellant went back inside the house, leaving the front door open. Delafuente saw appellant pull a man across the floor, then shoot the man. Delafuente testified she heard several more gunshots, then saw appellant walk out the front door. The person sitting in the van honked the horn once, then sped away from the scene as a police car drove down the street. The police chased the van. Delafuente saw appellant hiding in bushes on the side of the house. After the patrol car went by, Delafuente saw appellant run down the street while still holding the gun. Jason Buckaloo testified appellant came to his house at about 2:00 a.m. on March 1, 2002. Appellant said he was in trouble and needed to use the telephone. Appellant was wearing khaki pants that had blood stains on them. Buckaloo gave appellant another pair of pants to wear. Appellant threw the khaki pants into a dumpster behind Buckaloo's house, and asked Buckaloo to drive him to a relative's house. Maria Navarrete testified appellant came to her house in the early morning on March 1, 2002 and asked if he could stay there. Navarrete told appellant he could stay until morning, then he would have to leave. Appellant laid down on the living room couch. When Navarrete awoke later that morning, appellant was still lying on the couch. She left for an appointment and returned several hours later to find that appellant had been arrested and was being led from her house. Navarrete gave police officers verbal consent to search her house. Police recovered a firearm from under the couch where appellant had been sleeping. Police responded to a robbery call at 4014 Falls Drive. When they entered the house, they found Barajas's body behind the front door, and the bodies of Vasquez and Jimenez in a back bedroom. All three had died from multiple gunshot wounds. Both Vasquez and Jimenez were in the early stages of pregnancy at the time of their deaths. Police recovered many .45-caliber Remington shell casings and projectiles from the scene. They also recovered items from the van, including a jewelry box containing numerous pieces of jewelry, a magazine, a pair of latex gloves, and a key chain with a bottle opener on it. The driver of the van, who had eluded police that morning, was never caught. Police recovered a .45-caliber semiautomatic pistol from Navarrete's residence and a pair of blood-stained khaki pants from a dumpster behind Buckaloo's residence. Lab analysis showed the shell casings and projectiles from the scene and bullets recovered from the victims' bodies were all fired from the pistol found under the couch where appellant had been sleeping. Blood stains on the khaki pants and the pistol matched Baraja's and appellant's DNA. There was evidence the house at 4014 Falls Drive was searched at the time of the killings. Closet doors were open and a mattress was partially off the bed. Marjie Amaya, Jimenez's mother, testified her daughter wore two rings "all the time," but they were missing from her body. Amaya testified that her daughter's purse, billfold, and planner were also missing. Amaya was shown two rings that were found inside the jewelry box that was recovered from the van. Amaya positively identified them as the rings that belonged to her daughter. Amaya testified Barajas was her nephew and he always kept keys with a bottle opener attached with him because he worked as a bartender at a club in Deep Ellum. Amaya identified a key chain with a bottle opener on it that was recovered from the van as belonging to Barajas. Gaytan testified she owned the van. She also testified the jewelry box and jewelry belonged to her. Gaytan testified she was living in the van at the time, and when she picked up the van from the police impound, she told officers the jewelry box and jewelry were hers. Gaytan admitted she did not go to the station and look at each piece of jewelry. Detective Rick Berry, who took Gaytan's statement a few hours after the bodies were discovered at 4014 Falls Drive, testified Gaytan did not mention that she had left jewelry inside the van. Applicable Law
In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, *7 (Tex.Crim.App. Apr. 21, 2004). Evidence can be factually insufficient when: (1) considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) contrary evidence exists that is strong enough the beyond-a-reasonable-doubt standard could not have been met. See id. In examining a factual sufficiency challenge, we defer to the fact finder's determination of the credibility of the evidence. See Johnson, 23 S.W.3d at 11. The State was required to prove beyond a reasonable doubt that appellant intentionally caused the death of Christina Jimenez while in the course of committing or attempting to commit robbery. See Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(2) (Vernon 2003 Supp. 2004-05). Proof of a completed theft is not required to establish the underlying offense of robbery or attempted robbery. Bustamante v. State, 106 S.W.3d 738, 740 (Tex.Crim.App. 2003). If the State introduced evidence from which the jury could rationally conclude appellant possessed the specific intent to obtain or maintain control of the victim's property either before or during the commission of the murder, it has proved the murder occurred in the course of robbery. Williams v. State, 937 S.W.2d 479, 483 (Tex.Crim.App. 1996). In resolving this question, the requisite intent may be inferred from circumstantial evidence and from the defendant's conduct. Wolfe v. State, 917 S.W.2d 270, 275 (Tex.Crim.App. 1996). Discussion
Appellant argues the evidence is factually insufficient to support the conviction because theft was the aggravating element that elevated the murder charge to capital murder and the State offered no evidence that a theft was involved. Appellant contends there were only two witnesses who testified something was taken, but the evidence showed the jewelry recovered from the van belonged to the owner of the van and not the victim. The State responds the evidence is factually sufficient to support the jury's verdict and the record contains evidence that the murder occurred during the course of robbery or attempted robbery. We agree with the State. The evidence shows police found a jewelry box containing numerous pieces of jewelry in the van that was used to transport appellant to 4014 Falls Drive. Amaya identified two rings and a key chain as items that belonged to Jimenez and Barajas. She testified the two kept the items with them at all times. Although Gaytan claimed the rings and key chain belonged to her, Detective Berry testified Gaytan did not mention she left jewelry inside the van when he questioned her just a few hours after the victims were found. The jury is the exclusive judge of the facts provided and of the weight to be given the testimony, and resolves any conflicts in the evidence. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We may not substitute our own determination for that of the jury. See Ortiz v. State, 93 S.W.3d 79, 87-88 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003). We conclude the jury could rationally conclude that appellant possessed the specific intent to obtain or maintain control of Jimenez's property either before or during the commission of the murder. See Williams, 937 S.W.2d at 483. After conducting a neutral review of the record, we conclude the evidence of guilt is not too weak to support a finding of guilt beyond a reasonable doubt, nor is the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 2004 WL 840786, at * 7. Accordingly, we overrule appellant's sole point of error. We affirm the trial court's judgment.