Opinion
Nos. 05-03-01622-CR, 05-03-01623-CR
Opinion issued October 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-01541-TW F03-71823-VW. Affirmed.
Before Justices MORRIS, WHITTINGTON, and MAZZANT.
OPINION
Luis Alberto Gil appeals his convictions for attempted capital murder and stalking. After finding appellant guilty of both offenses, the jury assessed punishment at life confinement and a $10,000 fine and ten years' confinement respectively. In four issues, appellant contends the evidence is legally and factually insufficient to support his convictions. We affirm the trial court's judgments. In his first and third issues, appellant challenges the legal sufficiency of the evidence to support his convictions. When reviewing challenges to the legal sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jackson v. State, 3 S.W.3d 58, 60 (Tex.App.-Dallas 1999, no pet.). We view the evidence in the light most favorable to the verdict. Escamilla v. State, 2004 WL 1462077, at *1 (Tex.Crim.App. June 30, 2004); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). We determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 2004 WL 840121, at *5 (Tex.Crim.App. April 21, 2004); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003); Santellan v. State, 939 S.W.2d 155, 160 (Tex.Crim.App. 1997). The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). Thus, the factfinder is free to accept or reject any or all of the evidence presented by either side. Thomas v. State, 3 S.W.3d 89, 92 (Tex.App.-Dallas 1999), aff'd, 65 S.W.3d 38 (Tex.Crim.App. 2001); see Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). The factfinder may draw reasonable inferences from basic to ultimate facts. See Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000). In his second and fourth issues, appellant claims the evidence is factually insufficient to support his convictions. In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla, 2004 WL 1462077, at *1 (citing Zuniga v. State, 2004 WL 840786, at *7 (Tex.Crim.App. April 21, 2004)). Thus, we consider whether, after reviewing all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. There are two ways in which evidence may be factually insufficient:
First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.Zuniga, 2004 WL 840786, at *7. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). A person commits capital murder if he intentionally or knowingly causes the death of more than one individual during the same criminal transaction. Tex. Pen. Code Ann. § 19.02(b)(1), 19.03(a)(7)(A) (Vernon 2003 and Supp. 2004-05). A person commits attempted capital murder if, with the specific intent to commit capital murder, "he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." Tex. Pen. Code Ann. § 15.01(a) (Vernon 2003). A person commits stalking if he, "on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct," that he knows or reasonably believes the other person will regard as threatening bodily injury or would cause a reasonable person to fear bodily injury for herself. Tex. Pen. Code Ann. § 42.072(a)(1)(A), (a)(3) (Vernon 2003). Although appellant contends the evidence is legally and factually insufficient to support his convictions, we cannot agree. Appellant's estranged wife, Teresa, testified she had been married to appellant for two and one-half years when she decided to leave him. On February 19, 2003, she told appellant she was leaving. He became angry. The following morning she tried to leave with her seventeen-month old daughter but appellant caused her to fall down the stairs at their apartment, injuring both Teresa and their daughter. She contacted police and reported the incident. She moved in with her brother, Victor, her sister, Alejandra, and Alejandra's family. On February 22, appellant called her and told her if she did not go back with him, he was capable of killing her. He called her numerous times over the next several days. On February 25, appellant called Teresa and told her he was tired of the situation. He told her he would go to the house and get her, dragging her by the hair. Alternatively, he said he was capable of throwing a bomb at the house. Teresa again called the police and reported the incident. On February 26, appellant called and said he wanted to see his daughter. Teresa said he could come to the house but that he needed someone to accompany him. Teresa testified she was concerned and did not want to be alone with him. Victor Maldonado accompanied appellant and later called Teresa to tell her to be careful the next day. The following day, appellant was sitting in his car watching the house. He approached the house and rang the doorbell. Teresa was afraid and called the police. She applied for and was granted a protective order. On March 17, 2004, appellant again called and asked to see his daughter. Teresa agreed provided appellant was accompanied by someone. That evening, appellant and a friend, Francisco Zermeno, went to the house where Teresa was staying. Teresa left appellant with their daughter in the living room. Victor's and Alejandra's children were in Alejandra's bedroom. Teresa, Alejandra, and Francisco went to the kitchen. After fifteen to thirty minutes, appellant left to retrieve something from the car. Appellant returned with a toy box that he said was for his daughter. He set down the box and pulled out a rifle. Appellant told Teresa he was "ready to die and to finish with all of [them]." Appellant told Teresa she had to go with him. Both Alejandra and Teresa tried to calm appellant but he fired the rifle. Victor, who had not been in the kitchen, entered and tried to disarm appellant. Teresa also tried to disarm appellant. When she saw him point the rifle at Alejandra, she moved toward appellant and was shot. Teresa testified she remembered struggling with appellant in the living room and seeing Victor bleeding from the neck. Despite his injuries, Victor was able to flee the house. Appellant reloaded the rifle and pointed it at her, telling her she was going to live with him. He threatened to kill their daughter if she had him prosecuted. He also stated he was "ready for the police." Teresa testified she was shot four times and had been grazed by three other bullets. She spent four months in the hospital recovering from her injuries. Alejandra testified Teresa moved in with her on February 20, 2003. Appellant called Alejandra that morning and told her she had to "return" Teresa to him. He threatened both women, telling Alejandra that he was going to exchange his van for a gun and kill them. He called on February 22 and told Alejandra to convince Teresa to return to him. When she said she could not do it, he blamed Alejandra for the separation and told her he would kill her. He called again on February 25 and repeated his threats. Two days later, Alejandra and her family received a phone call warning them not to leave the house. That day, appellant followed Victor home and rang the doorbell, but no one answered. On March 17, appellant went to the house to visit his daughter. After awhile, he left and returned with a toy box. He opened the box and took out a gun. According to Alejandra, he said, "I'm willing to die. I want to kill all three [of you]." Alejandra and Teresa told him to calm down. Alejandra picked up her nine-month-old baby and started to leave the room, but appellant pointed the gun at her and said, "Don't move, Allie, I have you." Victor came running to the kitchen and struggled with appellant. The other children began to run into the kitchen. Alejandra pushed the children so they would go to the bedroom and began to follow them. Appellant pointed the gun at her again but Teresa threw herself at appellant. Appellant shot Teresa, and Alejandra went in the bedroom. She closed the door and led the children to a window. They escaped through the window. Victor testified both his sisters had been threatened by appellant, and they were nervous and scared. On March 17, 2003, appellant went to the house, accompanied by Francisco. After about half an hour, appellant went to the car. When he returned, he had a toy box. He opened it and threw a little toy car to his daughter. He then pulled out a rifle and went in the kitchen where Teresa and Alejandra were. Appellant announced, "I'm going to kill all of you." Victor grabbed his cell phone and called 911. He then called 911 from the house phone so the police would know where the call came from. Victor put the kids in the bedroom and heard a gunshot. He grabbed his knife and carried it to the living room. He left it by the sofa and went in the kitchen to calm down appellant. Appellant pointed the gun at Victor and fired, hitting him in the neck. Victor fell to the kitchen floor. Appellant shot him again in the stomach. Victor felt like he was dying, and his neck was bleeding "like a hose." He managed to get up and walk in the living room. Appellant said he did not have anymore bullets and took out a knife. He tried to stab Victor but Victor held him off. Victor told appellant to calm down, that he had already injured him. Appellant said, "No, you're gonna die anyway." Teresa grabbed appellant and pulled him off Victor. Standing up, Victor grabbed his knife, stabbed appellant in the back, and fled out the front door. Outside, he saw Francisco in the van. Francisco told Victor he would take him to the hospital. Shortly thereafter, the ambulance arrived and transported Victor to the hospital. Francisco testified he accompanied appellant in appellant's car to Alejandra's house on March 17. He thought it strange that Teresa did not want to see appellant alone. Appellant stayed in the living room to play with his daughter while Francisco went to the kitchen. After thirty minutes, appellant announced he was going to the car to get his daughter a gift. He returned with a box. He took a toy from the box he was carrying and gave it to his daughter. He then pulled a rifle from the box. Appellant told Teresa to get their daughter and leave with him. When she did not do so, he fired a shot into the wall. Victor entered the kitchen and told appellant to stop. Appellant fired at Victor, striking him. When Alejandra moved behind Francisco, appellant told Francisco to step aside. Teresa moved toward appellant, and they struggled for the gun. According to Francisco, the weapon started "firing towards [sic] all over the place." He feared for his life. He was hit by a bullet and fled through a door that led to the garage. He stayed there until the shooting stopped. He reentered the house and saw Victor, Teresa, and appellant struggling. Appellant went to the door, saying he was going to get more bullets. Francisco testified he told appellant to stop, that "they're probably already dead" and that he was wounded. Appellant threw Francisco the car keys and told him to leave. As Francisco tried to start the car, he saw Victor "almost falling towards the yard." According to Francisco, Victor was "very grave," with blood coming out of his wound like water. Francisco was afraid Victor was dying. In contrast to this testimony, appellant testified he did not threaten Teresa or Alejandra. He did not call, stake out the house, or ring the doorbell on the dates in question. On March 17, he went to visit his daughter. During the visit, he asked Teresa for more time with his daughter. Alejandra was there, and the three began to argue. Victor went in the kitchen and pushed appellant against the wall. Appellant then went to his car and brought in the toy box. He took out the rifle and told them, "[N]ow you're gonna pay attention to me." Appellant told them he just wanted to see his daughter more than just Saturdays. According to appellant, he fired a warning shot, and then Victor "launche[d] himself toward" appellant. He admitted shooting Victor and Teresa but testified he could not remember what happened after Victor went for him. When asked, appellant also admitted Teresa and her family were fearful he might try to do something and that is why they did not want him at the house alone. Viewed in the light most favorable to the judgment, the evidence shows appellant made several threatening statements to Teresa and Alejandra which made them fearful. In addition, he physically engaged in conduct, including pushing her down stairs, waiting outside the house, and ringing the doorbell, that he knew Teresa would regard as threatening bodily injury or would cause a reasonable person to fear bodily injury for herself. The evidence also shows appellant went to the house where Teresa and their daughter were staying. During his visit, he got a rifle from his car and, telling them he was going to kill them, shot Teresa four times and Victor twice. While Victor lay on the floor bleeding, appellant attempted to attack him with a knife, telling Victor he was going to die. From these facts, we conclude a rational jury could infer appellant (i) on numerous occasions and pursuant to the same scheme or course of conduct directed specifically at Teresa, knowingly engaged in conduct that he knew or reasonably believed Teresa would regard as threatening bodily injury or would cause a reasonable person to fear bodily injury for herself, and (ii) intentionally or knowingly attempted to cause the death of Teresa and Victor during the same criminal transaction. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's convictions for stalking and attempted capital murder. We overrule appellant's first and third issues. In his second and fourth issues, appellant raises the same argument to challenge the factual sufficiency of the evidence. Specifically, appellant notes his testimony that he did not intend to kill anyone and that if he had, he would have started shooting as he entered the house. The jury was the factfinder in this case and, as such, was entitled to believe or disbelieve appellant's testimony. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude, after reviewing the evidence in this case in a neutral light, that the jury was rationally justified in finding guilt beyond a reasonable doubt. The State's evidence was not too weak to support the finding of guilt beyond a reasonable doubt. Furthermore, contrary evidence, strong enough that the beyond-a-reasonable-doubt standard could not have been met, does not exist. We therefore conclude the evidence is factually sufficient to support appellant's convictions. We overrule appellant's second and fourth issues. We affirm the trial court's judgments.