Opinion
No. 05-03-01514-CR
Opinion Filed August 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-53324-M. Affirmed.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
MEMORANDUM OPINION
A jury convicted Francisco Ayala of the capital murder of Adalberto Shoumbert and made an affirmative finding that Ayala used or exhibited a deadly weapon, a knife or unknown object, during the commission of the offense. The trial court imposed a mandatory life sentence. In five points of error, Ayala argues the evidence is legally insufficient to establish he was culpable as a party to the offense, and the trial court erred in (1) instructing the jury on the law of parties, (2) failing to give an additional instruction in response to a written jury question, (3) failing to instruct the jury that the offense required proof of a specific intent to kill the victim, and (4) including a definition of reasonable doubt in the jury charge. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.2(a), 47.4. We affirm the trial court's judgment. Ayala's first point of error argues the evidence is legally insufficient to show that he was culpable as a party to the offense. He does not challenge the legal sufficiency of the evidence to support his guilt as a primary actor. The jury charge permitted the jury to convict Ayala of capital murder if it found beyond a reasonable doubt that Ayala "either acting alone or as a party" intentionally caused Shoumbert's death by stabbing him with a deadly weapon, a knife or unknown object, and Ayala "either acting alone or as a party" was in the course of committing or attempting to commit robbery of Shoumbert. We apply the appropriate standard of review. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995) (legal sufficiency). We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). See also Gollihar v. State, 46 S.W.3d 243, 256 (Tex.Crim.App. 2001). A person commits capital murder if he intentionally causes the death of an individual in the course of committing or attempting to commit robbery. Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(2) (Vernon 2003 Supp. 2004-05). A person commits robbery if he unlawfully appropriates property with the intent to deprive the owner of the property and, with the intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another, or intentionally or knowingly places another in fear of imminent bodily injury or death. Id. §§ 29.02(a), 31.03(a) (Vernon 2003 Supp. 2004-05). Ayala argues that a hypothetically correct charge would have authorized a conviction only on the theory that Ayala was the primary actor. Because Ayala could be convicted as the primary actor under either a hypothetically correct charge or the charge given, the alleged lack of evidence of his guilt as a party presents nothing for review. However, applying the appropriate standard of review, we conclude the evidence is legally sufficient to support the finding of Ayala's guilt as a primary actor. The record contains evidence that the victim, Shoumbert, was a drug dealer using the street name Papeto. Papeto referred to Ayala as his son. Papeto usually sold drugs in a field near the intersection of Ross and Haskell in Dallas. Witnesses had seen Ayala in the field before and one witness knew both men. On the night Papeto was killed, several people were in the field smoking cocaine. Ayala and a group of six to eight other people came up to Papeto in the field. Ayala demanded money and drugs from Papeto, but he refused. They moved to another part of the field and argued. Ayala said he was going to make an example of Papeto and started walking towards him. One witness saw Papeto give Ayala money but not drugs. The witness then saw Ayala stab Papeto in the chest with a knife. Another man hit Papeto and another searched his pockets and took his watch. Ayala and the others in the group left before police arrived. Two witnesses identified Ayala to police as the man who stabbed Papeto. A few hours later, police found Ayala and two other men walking down a nearby street. After considering the evidence, including the above evidence, in the light most favorable to the verdict, we conclude a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574. Thus the evidence is legally sufficient to support Ayala's conviction as a primary actor. We overrule Ayala's first point of error. Ayala's second point of error argues the trial court erred in instructing the jury that he could be convicted as a party to the offense. Ayala did not object to the jury charge; thus, if the jury charge was erroneous, Ayala must show egregious harm. Jimenez v. State, 32 S.W.3d 233, 238 (Tex.Crim.App. 2000); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g). Assuming it was error to instruct on the law of parties, Ayala cannot establish egregious harm because "where, as in the instant case, the evidence clearly supports a defendant's guilt as the primary actor, error in charging on the law of parties was harmless." Cathey v. State, 992 S.W.2d 460, 466 (Tex.Crim.App. 1999) (citing Black v. State, 723 S.W.2d 674, 675 676 n. 2 (Tex.Crim.App. 1986)). See also Ladd v. State, 3 S.W.3d 547, 564-65 (Tex.Crim.App. 1999). As discussed above, the evidence is legally sufficient to support Ayala's guilt as a primary actor. We overrule Ayala's second point of error. Ayala's third point of error argues the trial erred in failing to give a supplemental instruction in response to a written note from the jury. During deliberations, the jury sent out a written note indicating they were in dispute about the wording of the charge and asked, "Can we convict of capital murder if Ayala was a party to the offense or do we have to be convinced beyond a reasonable doubt that Ayala, himself, stabbed the complainant?" The trial court responded in writing that the jury had been given all the law and evidence to which it was entitled and to continue with its deliberations. Ayala did not object to this response or request an additional instruction. Ayala argues that the jury charge erroneously included conflicting instructions on the law of parties and the jury's note indicated that error. He argues the trial court was required to give a supplemental instruction to correct the alleged error in the original charge. Again, Ayala did not object to the original jury charge or to the trial court's instruction to continue deliberations. Ayala asserts, however, that failure to give an additional instruction was fundamental error causing egregious harm. Almanza, 686 S.W.2d at 171. Assuming there was error, we again conclude that Ayala has not shown egregious harm in connection with the instruction on the law of parties. Ladd, 3 S.W.3d 547, 564-65. The evidence supports Ayala's guilt as a primary actor. Because there was no evidence tending to show his guilt as a party, "the jury almost certainly did not rely upon the parties instruction in arriving at its verdict, but rather based the verdict on the evidence tending to show appellant's guilt as a principal actor." Id. We overrule Ayala's third point of error. Ayala's fourth point of error asserts the trial court omitted an element of the offense by failing to instruct the jury that capital murder requires proof that the accused had a specific intent to kill the victim. We disagree. Under section 19.03(a)(2), capital murder is an intentional murder committed in the course of robbery or other listed crimes. See Tex. Pen. Code Ann. § 19.03(a)(2); Threadgill v. State, 146 S.W.3d 654, 665 (Tex.Crim.App. 2004). The jury was instructed in the application paragraph that it could find Ayala guilty of capital murder only if it found beyond a reasonable doubt that on the night in question, Ayala,
either acting alone or as a party, did then and there intentionally cause the death of Shoumbert, an individual, hereinafter called deceased, by stabbing deceased with a knife, a deadly weapon, or an unknown object, a deadly weapon, the exact nature and description of which is unknown to the Grand Jurors, and the defendant, either acting alone or as a party, was then and there in the course of committing or attempting to commit the offense of robbery of Shoumbert.(emphasis added). Thus the jury was instructed that it must find beyond a reasonable doubt that Ayala intentionally caused the death of Shoumbert while in the course of committing or attempting to commit robbery. We conclude Ayala has not shown fundamental charge error that caused him egregious harm. Almanza, 686 S.W.2d at 171. We overrule Ayala's fourth point of error. In his fifth point of error, Ayala complains the trial court erred by instructing the jury that "[i]t is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all `reasonable doubt' concerning the defendant's guilt." Ayala argues this instruction constitutes a definition of reasonable doubt and therefore violates the Texas Court of Criminal Appeals's holding in Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000). We have previously rejected this precise argument. See O'Canas v. State, 140 S.W.3d 695, 702 (Tex.App.-Dallas 2003, pet. ref'd). We overrule Ayala's fifth point of error. We affirm the trial court's judgment.