Opinion
No. 05-05-00440-CR
Opinion Filed March 6, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F04-55650-RI. Affirm.
Before Justices O'NEILL, FITZGERALD, and LANG.
OPINION
Appellant appeals his conviction for capital murder. In two points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. For the following reasons, we affirm the trial court's judgment. At about 6:00 a.m. on August 30, 2004, the Swedish Massage Institute, a sexually oriented business, was robbed by appellant, and two others. At the time of the robbery, Luis Perez and the deceased, Maria Rodriguez, were working at the business. At trial, Perez testified that after the three robbers entered the premises, one of the robbers, later identified as appellant, grabbed Rodriguez and dragged her at gunpoint toward one of the massage rooms called the "Delta room." Perez was armed and fired shots at the robbers, hitting appellant's codefendant, who fell to the ground. Appellant then dragged Rodriquez inside the Delta room and Perez heard a gunshot. After he heard the gunshot, appellant ran from that room. Appellant fled the scene with the two other robbers. Rodriguez was found dead in the Delta room. In his first point of error, appellant asserts the evidence is legally insufficient to support his conviction because the evidence fails to show he had the specific intent to kill Rodriguez. In reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). Viewed in the light most favorable to the prosecution, the evidence shows that appellant pulled Rodriquez into the Delta room and shot her in the torso. The jury could have inferred appellant's intent to kill Rodriguez from evidence he shot her with a firearm. See Jackson v. State, 115 S.W.3d 326, 329 (Tex.App.-Dallas 2003), aff'd, 160 S.W.3d 568 (Tex.Crim.App. 2005). The evidence is legally sufficient to support appellant's conviction. We overrule appellant's first point of error. In his second point of error, appellant contends the evidence is factually insufficient to support his conviction. When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The question is whether, considering all of the evidence in a neutral light, the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence can be factually insufficient if (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. According to appellant, the evidence is factually insufficient because the evidence shows Rodriquez was accidently shot during a gun battle between appellant and Perez. Appellant relies on physical evidence he asserts is contrary to the State's theory of the case and better supports a conclusion that Rodriguez was accidently shot. The only physical evidence appellant directs us to is evidence that the bullet "that is believed to have killed" Rodriguez was found in the hallway outside the room where her body was found. He thus establishes the physical evidence shows Rodriguez was shot in the hallway, not the Delta room. He asserts this evidence is contrary to the verdict because (1) it is inconsistent with Perez's testimony and (2) is consistent with an accidental shooting that occurred during a gun battle between Perez and the robbers. Initially, we note the bullet appellant asserts killed Rodriguez could have been knocked into the hallway after the shooting. Further, other physical evidence shows Rodriguez was shot and killed in the Delta room, just as Perez testified. Not only was her body found there, blood splatter from the shooting was found in that room. After reviewing the entire record, we cannot conclude (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. We overrule appellant's second point of error. We affirm the trial court's judgment.