Arana v. State

Full title: THOMAS ABRAHAM ARANA III, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Jul 19, 2011

No. 14-10-00182-CR (Tex. App. Jul. 19, 2011)

Opinion

No. 14-10-00182-CR

Opinion filed July 19, 2011. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).

On Appeal from the 263rd District Court, Harris County, Texas, Trial Court Cause No. 1128718.

Panel consists of Justices ANDERSON, SEYMORE, and McCALLY.

MEMORANDUM OPINION

CHARLES W. SEYMORE, Justice.

A jury convicted appellant, Thomas Abraham Arana III, of capital murder, and he was mandatorily sentenced to life imprisonment without parole. See Tex. Penal Code Ann. § 12.31(a)(2) (West 2011). Appellant contends the evidence is legally and factually insufficient to support his conviction. We affirm.

I. BACKGROUND

In July 2007, Jonathan Mann arranged a marijuana transaction between appellant and Marcus Scott. Specifically, appellant was supposed to purchase ten pounds of marijuana from Scott for $3,500. Appellant drove his vehicle to a convenience store where he met Mann. Appellant then followed Mann to Scott's house. The southern side of Scott's house was flanked by a driveway that was partly covered by a carport; a laundry room opened to the driveway. Appellant parked his vehicle and walked up the driveway toward the laundry room. Appellant asked to see the marijuana and informed Scott that he did not bring enough money for the transaction. Scott showed appellant the marijuana and produced a sample. Appellant left in his vehicle and returned approximately fifteen minutes later. According to Mann, he waited under the carport with Scott until appellant returned. When appellant arrived, Mann was looking at Scott's backyard. Mann testified that he did not possess a weapon at the time of the shooting. After appellant walked up the driveway, Mann turned to acknowledge appellant, "and the next thing I heard him do was call my name." Mann again turned to face appellant, and appellant used a handgun to shoot Mann in the jaw. After Scott stated, "Oh, man, he's shooting," Mann witnessed appellant shoot Scott in the back as Scott was attempting to flee. Mann fled, leaving a trail of blood. As Mann ran, one of his teeth fell to the ground, and he dropped his cell phone. Mann ultimately recovered from his injuries. Appellant's version of the shooting differed. According to appellant, he arrived at Scott's house with $2,000 cash. Appellant informed Scott that he did not bring enough money for the purchase. After Scott showed appellant the marijuana and provided a sample, appellant drove to his apartment, retrieved enough money to buy nine pounds of marijuana, and returned to Scott's house with $3,100 in one-hundred dollar bills. Appellant gave Scott the $3,100, which he placed in his pocket. As appellant was preparing to leave, Mann yelled "something" to him. Appellant turned and saw Mann holding a revolver. Mann told appellant to "give it up," apparently referring to the marijuana. Appellant then drew his handgun, shot Mann, and shot Scott in the back as he was turning away from appellant. After the shootings, appellant retrieved a black bag containing the marijuana and ran to his vehicle. As appellant was running, other persons approached the scene, and one person yelled "what's up?" Appellant testified that he fired a warning shot into the air in order to keep the crowd back. However, Demorris Harmon testified that, after he asked appellant, "[W]hat's up? What's going on?," appellant fired at him. Shortly thereafter, police and medical personnel arrived at the scene and found Scott's body in the laundry room; he was pronounced dead at the scene. A medical examiner testified that Scott died from the gunshot wound to his back. Over four-thousand dollars in cash were found on Scott's person, including $3,500 in one-hundred dollar bills. Investigators discovered several types of narcotics in the laundry room. They also found Mann's tooth and cell phone and three casings from .45 caliber ammunition. Appellant testified that he shot Mann and Scott with a .45 caliber handgun, which he sold after the incident. Mann and Harmon told investigators that appellant was the shooter and identified him on a photospread. When investigators questioned appellant, he denied involvement in the shooting. Appellant was ultimately convicted of capital murder for intentionally killing Scott in the course of committing robbery.

II. SUFFICIENCY OF THE EVIDENCE

In his first and second issues, appellant contends the evidence is legally and factually insufficient to support the jury's verdict. Specifically, appellant argues the evidence does not support a finding that he caused Scott's death while in the course of committing or attempting to commit robbery.

A. Relevant Law and Standard of Review

A person commits capital murder if he intentionally commits murder in the course of committing or attempting to commit robbery. Tex. Penal Code Ann. §§ 19.02(b), 19.03(a)(2) (West 2011). A person commits the offense of robbery if, in the course of committing theft, and with the intent to obtain or maintain control of property, he intentionally or knowingly causes bodily injury to another or threatens or places another in fear of imminent bodily injury or death. Id. § 29.02(a)(2) (West 2003). For murder to constitute capital murder committed in the course of a robbery, the intent to rob must be formulated before or at the time of the murder. Herrin v. State, 125 S.W.3d 436, 441 (Tex. Crim. App. 2002). Proof that the robbery was committed as an afterthought and unrelated to the murder is not sufficient. Id. While this appeal was pending, five judges on the Texas Court of Criminal Appeals held that only one standard should be employed to evaluate whether the evidence is sufficient to support a criminal conviction beyond a reasonable doubt: legal sufficiency. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.); id. at 926 (Cochran, J., concurring). Accordingly, we review appellant's challenge to factual sufficiency of the evidence under the legal-sufficiency standard. See Pomier v. State, 326 S.W.3d 373, 378 (Tex. App.-Houston [14th Dist.] 2010, no pet.) (applying a single standard of review required by Brooks); see also Caddell v. State, 123 S.W.3d 722, 726-27 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd) (explaining this court is bound to follow its own precedent). When reviewing sufficiency of evidence, we view all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 899 (plurality op.). We may not sit as a thirteenth juror and substitute our judgment for that of the fact finder by reevaluating the weight and credibility of the evidence. Id. at 899, 901; Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (expressing that jury may choose to believe or disbelieve any portion of the testimony). We defer to the fact finder's resolution of conflicting evidence unless the resolution is not rational. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The sufficiency of the evidence is measured by the elements of the offense as defined in the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor and can be sufficient alone to establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). An inference is a conclusion reached by considering other facts and deducing a logical consequence from them. Id. at 16. Speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. Id. A conclusion reached by speculation may not be completely unreasonable, but it is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt. Id. Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative effect of all the incriminating facts are sufficient to support the conviction. Id. at 13.

B. Analysis

Appellant's testimony that he intentionally shot Scott satisfies the elements of murder. Tex. Penal Code Ann. § 19.02(b)(1), (2). Viewing all of the evidence in the light most favorable to the verdict, the following facts support the jury's determination that appellant intended prior to or during the time of the murder to rob Scott:

• Appellant arrived at Scott's house without the agreed amount of money.

• Appellant asked to see the marijuana and for a sample.

• Appellant stated that he needed to retrieve the rest of his money and then left for fifteen minutes.

• When appellant returned, Scott and Mann were waiting under the carport; Mann did not possess any weapons.

• Mann acknowledged appellant's return; appellant then called Mann's name and shot Mann in the face when he turned.

• Scott stated, "Oh, man, he's shooting"; appellant shot Scott in the back as he was attempting to flee.

• Appellant retrieved the black bag of marijuana and ran to his vehicle; as he ran, appellant shot at Harmon.

• Appellant sold the murder weapon and later told police investigators that he was not involved in the shooting.

These facts support an inference that appellant intended to murder Mann and Scott then flee with the marijuana, which correspondingly supports the jury's conclusion that appellant murdered Scott in the course of committing robbery. Tex. Penal Code Ann. § 19.03(a)(2); see also Herrin, 125 S.W.3d at 441; Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) ("If there is evidence . . . from which the jury could rationally conclude beyond a reasonable doubt that the defendant formed the intent to obtain or maintain control of the victim's property either before or during the commission of the murder, then the State has proven that the murder occurred in the course of the robbery."). The jury chose to believe Mann's account of the incident and disbelieve appellant's testimony that Mann drew a revolver before appellant drew his gun. Further, there is circumstantial evidence negating appellant's testimony that Mann drew a revolver: although investigators located three bullet casings and Mann's tooth and cell phone near the murder scene, they did not recover a revolver. Appellant argues the evidence demonstrates that he paid Scott $3,100 in one-hundred dollar bills because $3,500 in one-hundred dollar bills was found on Scott's person. Apparently, appellant contends this evidence proved he did not intend to rob Scott because it is unreasonable to infer that appellant would have paid for the drugs if he intended to take them. This contention lacks merit because the jury chose not to believe appellant's claim that Mann drew a gun, and there was no suggestion Scott possessed a gun. If neither Mann nor Scott drew a gun on appellant, a rational jury could have concluded that appellant would not pay $3,100 for the marijuana, shoot the men, then flee with the marijuana without recovering the $3,100. It would be irrational to conclude appellant's plan involved tendering $3,100 cash in order to rob the victims of their marijuana when he could have simply paid $3,100 and obtained the marijuana without using deadly force. Instead, the jury reasonably could have determined that appellant intended to shoot Scott and Mann and take the marijuana without paying. There was evidence that such a plan is colloquially described as a "dope rip." In fact, appellant acknowledged that a person could commit a "dope rip" by (1) ascertaining that the victim possesses narcotics and sampling the narcotics to ensure "it's good dope," (2) fabricating an excuse for having to leave to obtain the purchase money, and (3) returning with a gun to use in robbing the victims of the narcotics. There was also evidence suggesting that the cash found on Scott was acquired from previous drug transactions. Several witnesses testified Scott was an active drug dealer, and his body was discovered in a laundry room containing other drugs and an old washing machine where marijuana was stashed. Appellant also argues that the evidence is insufficient to prove his intent to commit robbery because there was no testimony he demanded the marijuana before the shooting and he did not take the other drugs in Scott's laundry room. However, these facts did not negate appellant's intent to commit robbery. The jury could have reasonably believed appellant did not demand the marijuana because his intent was to kill both men then take the drugs, and he did not spend time searching for other items to take because he wanted to flee the scene quickly. Finally, appellant argues the evidence is insufficient to support his conviction because Mann and Harmon were not credible. Appellant notes that Mann (1) was a life-long friend to Scott who would have benefited financially from the drug transaction, (2) had reason to blame appellant for the shooting because appellant testified that Mann drew the first firearm, and (3) testified that he wanted to assist police investigators. However, these factors were for the jury to consider in evaluating the credibility Mann and Harmon. Because the jury implicitly found them to be credible, we must defer to its findings. See Brooks, 323 S.W.3d at 899 (plurality op.) (stating appellate courts must defer to jury's credibility and weight determinations). Accordingly, we conclude the evidence is sufficient to support the jury's verdict. Appellant's first and second issues are overruled. We affirm the trial court's judgment.