Opinion
09-22-00374-CR
11-06-2024
LARNELL JRAY MOSLEY, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Submitted on July 24, 2024
On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 20-34067.
Before Golemon, C.J., Wright and Chambers, JJ.
MEMORANDUM OPINION
JAY WRIGHT Justice
Jose Ray Riojas ("Ray" or "Riojas") died from gunshot wounds he received on January 22, 2020. A grand jury indicted Appellant Larnell Jray Mosley ("Appellant" or "Mosley") for intentionally and knowingly causing the death of Riojas by use of a deadly weapon-namely, a firearm. Mosley pleaded "not guilty." A jury found Mosley guilty as charged in the indictment. After a hearing on punishment, the jury assessed punishment at sixty years of confinement. On appeal,
Mosley challenges the sufficiency of the evidence to support his conviction and the admission of certain evidence. We affirm.
Evidence at Trial
Testimony of Brandon Guidry
Brandon Guidry testified that he worked at the Jefferson Refinery, at both the Port of Beaumont side and the Orange County side, where he worked security at the main gate. Guidry agreed he was working on January 20, 2020, when Mosley came by to pick up his tools, and Guidry thought Mosley had been laid off. According to Mosley, the tools would have been in a toolbox, but the toolbox was empty, and it appeared the tools had been stolen. Guidry testified that Mosley was with his girlfriend.
According to Guidry, Mosley had called beforehand, and Riojas had brought the toolbox to the front gate. When Mosley saw his tools were not in the toolbox, he "got perturbed[]" and asked Riojas where his tools were. Riojas replied that he did not take Mosley's tools and he did not know what happened to them. Riojas asked Mosley where his H2S monitor was, alleging that it should have been in the toolbox. Guidry agreed there was an altercation between Riojas and Mosley, and at one point, Mosley "pulled up his pants like he was in a combative stance[.]" According to Guidry, Riojas was "cool" and a "good guy[,]" but so was Mosley. However, the altercation escalated, and Mosely told Riojas, "I know where you stay. I'll kill you."
At that point, Guidry grabbed Mosley and told him, "No, man. We can do that another way[]" and Riojas looked "truly scared." Guidry told Mosley he would report the missing tools to the company that hired Mosley, and Guidry reported it to the port officer at the Port of Beaumont. Guidry also testified that he talked with Riojas, who told him that he had not taken Mosley's tools, but Riojas offered to replace the tools. On cross-examination, Guidry testified that there was not a recording of the altercation between Riojas and Mosley, but the port officer had written it up.
Testimony of Detective Lawrence Myers
Lawrence Myers, a detective with the Port Arthur Police Department, testified that he was asked to pull video from all the officers on the scene in this case and also the recorded 911 calls. He identified State's Exhibit 1 as fair and accurate recordings of two 911 calls to the City of Port Arthur, and the exhibit was published to the jury. The exhibit includes a recorded call to 911 reporting gun shots fired and another call from a woman reporting that her husband had been shot in the neck.
Testimony of Sylvia Riojas
Sylvia Riojas ("Sylvia") testified that she was married to Jose Ray Riojas, they had two children, Ray worked as a blaster painter and music producer, and she sold insurance. She explained that on January 22, 2020, the weather was rainy, and when she got home after work after 5 p.m., Ray was at home listening to music. She testified that she and her son walked outside briefly, and when they got back home, her daughter was frightened and told her that someone was at the door. Sylvia told her daughter to tell Ray, and when Sylvia went to the front door, there was a masked person wearing sunglasses and "trying to open the door." Sylvia testified that she did not recognize the person at the door, and she went to tell her husband that someone was at the house.
According to Sylvia, Ray could tell she was panicking, and he grabbed his gun and went to the front door. Sylvia testified that Ray then opened the door and pointed his gun, and after the men "mumbled something[,]" Ray dropped his gun down, and the person at the door shot Ray and Ray fell to the ground. Sylvia explained that she "kept hearing shots[,]" and Ray was lying on the ground with blood coming from his neck and stomach. Sylvia testified that Ray's brother Orlando was at their home, which she had not realized, and she and Orlando tried to talk to Ray, but Ray was just shaking and could not respond.
Sylvia testified that her home had security cameras in front of the garage, by the front door, on the side of the house, and two in the back yard, and the cameras record when they are tripped by motion. She identified State's Exhibit 3 as recordings from the security cameras on the front of her home that were related to the shooting, and the exhibit was published to the jury. Some of the recordings depict an SUV driving down the street that Sylvia did not recognize, and some of the recordings show two people at the front door of the house whom Sylvia did not recognize. Sylvia agreed that she saw one of the men in the video shoot her husband. State's Exhibits 81 and 82 were admitted, which Sylvia identified as photos of Ray and the children.
Testimony of Constable Jamarcus Davis
Jamarcus Davis testified that he worked for the Constable's Office for Jefferson County Precinct 8 at the time of trial, and he previously worked for the Port Arthur Police Department. Davis testified that in January of 2020, he worked as a patrol officer on the evening shift for the police department, and at about 5:30 p.m. on January 22, 2020, he responded to a dispatch about shots fired. According to Davis, when he arrived at the scene, he saw a Hispanic man lying on the floor of the entryway of the house, the man appeared to have been shot, and he noticed a few shell casings on the ground inside the house.
Davis agreed he was wearing a body camera that day, he identified State's Exhibit 2 as accurate video footage from his camera, and the recording was published to the jury. On cross-examination, Davis testified that the security camera footage shows Ray Riojas's arm, holding a gun and extending out the front door. Testimony of Detective Adam Cousins
Adam Cousins testified that he is a detective with the Port Arthur Police Department assigned to the Major Crimes Unit. Cousins recalled that he was on duty on January 22, 2020, and he responded to a report of a homicide. According to Cousins, the street where the victim lived was under construction and muddy at the time of the incident, and traffic could only pass on one lane. Cousins testified that the mud in the street was a distinctive light brown or tan color. When Cousins arrived at the scene, Riojas had already been transported to the hospital, and Cousins saw blood on the floor near the front door as well as spent shell casings both inside and outside the front door.
Cousins testified that he had watched the videos that were recorded from the home's security cameras and determined that two people wearing dark masks were involved in the incident. Cousins described one of the suspects as a dark-complected man wearing sunglasses, a mask, and a green knit cap with printed snowflakes. According to Cousins, because January 22, 2020 was before COVID, it was not common for people to wear masks for safety reasons. He also testified that one of the suspects initially did not knock on the front door but just tried to push it open. Then, the video shows the man wearing the cap with the snowflake pattern pull a handgun from his pocket while the other man holds two firearms. According to Cousins, the videos showed a golden-tan SUV driving by-possibly a Lincoln Navigator or Ford Explorer-and Cousins could tell that the center caps that cover the lug nuts were missing on the driver's side of the vehicle. Cousins further testified that the SUV was traveling slowly, in a way that suggested it was "trying to scope out what was going on" in the area. Cousins recalled that video another detective reviewed the following day showed that the SUV did not park in front of the Riojas house but rather around the corner from the home. Cousins explained that one of the home's security cameras was taken during the incident. Cousins testified that the circumstances raised suspicion because the two suspects showed up at the house unannounced, concealing their faces, wearing sunglasses on a cloudy day, tried to force the front door open, instead of waiting for someone inside to open it, parked around the corner, and removed one of the home's security cameras. Cousins thought these circumstances would justify the homeowner in defending himself and his family.
Cousins identified State's Exhibits 7 through 32 as fair and accurate photos of the scene where the shooting occurred, and the photos were admitted into evidence. According to Cousins, spent casings were found at the scene, Cousins testified that three guns of different calibers were involved in the incident, and video showed that one suspect fired four shots from outside the front door. Cousins further testified that Riojas had a .45 caliber Springfield XD. However, no fired .45 casings were found inside the home. Cousins did not believe Riojas had fired his gun.
Cousins testified that the detectives obtained video from other homes in the area that showed a Navigator driving away fast from the street around the corner after the Riojas video showed the shooting of Riojas, and Cousins agreed that State's Exhibit 4 shows the Navigator driving away. Cousins agreed that other detectives eventually found the Navigator in the video in Port Arthur. The vehicle was registered to a woman who was dating Mosley and the Navigator had mud on it--the same color as the mud in the streets near the Riojas home on the day of the shooting. Cousins identified State's Exhibits 33 through 39 as photos of the Navigator where police found it. According to Cousins, the Navigator was towed to the police station, and after obtaining a search warrant, police searched the vehicle. Cousins then identified State's Exhibits 40 through 49 as photos of the inside of the Navigator, including photos of black gloves found in the vehicle, neck gaiters, and a knitted cap.
Cousins testified that, when police found the vehicle, Jeremy Roy ("Roy") was sitting inside, and when police interviewed Roy, he denied any involvement in the shooting, but when police interviewed Mosley, Mosley implicated Roy in the shooting. Cousins recalled that police found a video on Facebook of Roy and Mosley that Roy had posted about an hour before the shooting, and Cousins identified State's Exhibit 5 as a copy of that video. According to Cousins, the video depicts two men who looked like the suspects in the Riojas shooting. Cousins testified that, in the video, someone is heard asking Roy if he grabbed the mask, and Roy replied, "Bet," which Cousins explained "is street talk for yes, I did." Cousins further testified that the video also includes someone asking Roy if he grabbed the .40, and police later determined that Roy had a .40 caliber handgun during the Riojas shooting. According to Cousins, the physical evidence indicated that only two firearms were discharged at the Riojas home-a 9mm and a .40 caliber gun.
Cousins identified State's Exhibits 50 through 68 as photos taken inside the apartment where Roy, Mosley, and Mosley's girlfriend lived. The pictured items included a Ruger 9mm handgun and a pair of black and white shoes.
Cousins agreed that he met with Mosley at the Port Arthur Police Department and interviewed him after Mosley waived his Miranda rights. Before the interview, Cousins had learned that Mosley worked for Riojas at the Port of Beaumont and that Mosley and Riojas had an altercation at work before Mosley's employment was terminated, but when Cousins asked Mosley if he knew Riojas, Mosley said he did not. When Cousins told Mosley that Riojas had been killed, Mosley then stated that Riojas was his boss. Cousins testified that initially, he did not believe that Mosley was being truthful, but after a break in the interview, Cousins thought Mosley gave more truthful answers. Cousins recalled that initially Mosley denied any involvement in killing Riojas. But Cousins explained that, after several hours, Mosley "actually confessed to shooting and killing Riojas." Cousins identified the defendant, Mosley, as the person who admitted to shooting Riojas. Cousins also testified that Jeremy Roy also confessed to shooting Riojas.
Cousins agreed that State's Exhibit 6 was a recording of the interview, which was admitted and published to the jury. In the recording, a police officer gives Mosley his Miranda warnings, and one of the officers tells Mosley that the jury could give him probation or a lesser sentence if he shows remorse. Mosley then tells the officers that he went to Riojas's home to get his tools because he was "fed up," and he and Roy parked the Navigator on a side street around the corner from the Riojas home. Mosley further told police that he heard Riojas cock his gun before Riojas opened the front door, and Mosley pulled his gun out and shot Riojas. Mosley also told police that he and Roy left in the Navigator and went home, and the guns they used were in the apartment where he lives.
Cousins testified that he believed that Mosley thought that Mosley and Roy had taken all the surveillance video from the Riojas home. He said Mosley provided details in his statement that would only be known by someone who was present at the time of the shooting. Cousins agreed that Mosley had told Riojas at the Port of Beaumont that he "knew where he stayed and that he would be there," and a guard at the Port witnessed this statement. And Cousins also agreed that Mosley was the one driving the Navigator and is seen shooting four times in surveillance video from the Riojas home.
Cousins testified that the Ruger 9mm handgun admitted into evidence was the pistol pictured in State's Exhibits 55 through 58. Cousins agreed he took a buccal swab from Mosley, which was admitted as State's Exhibit 79. Cousins also testified that, during his investigation, he recovered Riojas's pistol, which Roy had sold. According to Cousins, a taco found in the SUV corroborated Mosley's testimony that he and Roy went to a fast-food restaurant the night of the shooting.
On cross-examination, Cousins testified that Mosley's girlfriend told the police that Mosley had taken her Navigator without her permission, and when he returned, he was with Roy. Cousins further testified that the 9mm handgun recovered was a semiautomatic. According to Cousins, interviews with coworkers at the Port of Beaumont determined that the only confrontation Riojas had at work was with Mosley. Cousins agreed that, while interviewing Mosley, he told Mosley that a jury could give a person probation for murder and that Cousins knew that was not true, but he was "not obligated to tell the truth during an interview."
On redirect, Cousins testified that he believed he would not have gotten Mosley's confession if he had not told Mosley that the jury could give probation. Cousins testified that he believed Mosley went to Riojas's home to get his (Mosley's) tools back, but that Mosley did not have "good intentions[]" based on the clothing he wore and how he approached the front door. According to Cousins, "[t]he entire encounter with Mr. Riojas was not normal, and it led me to believe that they were there to do something other than just get the tools." Cousins explained that even though there was no room to park on the Riojas driveway and the street was muddy, there was still room to park in front of the house, and it was not necessary to park around the corner.
Testimony of Malauri Cruz
Malauri Cruz testified that she worked as a crime scene investigator for the City of Port Arthur for four years, and she went to the crime scene in this case. Cruz recognized State's Exhibits 71 through 76 and 83 as items she collected from the scene, tagged with her signature and date, and logged into evidence, which included casings found on the ground.
Testimony of Dr. Selly Strauch-Rivers
Dr. Selly Strauch-Rivers ("Strauch") testified that she is the chief forensic pathologist for Forensic Medical Management Services of Texas and she performs autopsies for Jefferson County. According to Strauch, her former boss, Dr. John Wayne, performed the autopsy of Jose Riojas, but Dr. Wayne subsequently died, and Strauch reviewed Dr. Wayne's report before testifying.
Strauch testified that Riojas was a Hispanic male, aged 35, with multiple gunshot wounds. According to Dr. Wayne's report, Riojas had gunshot wounds to the left upper portion of his chest, to the left upper extremity, lower right extremity, and two gunshot wounds to the left lateral torso. Strauch testified that the wound to the chest was a fatal wound, and the projectile went through the right lung, causing internal and external bleeding. The wound to the left upper extremity and torso was also a fatal wound, as it hit Riojas's heart, went through the lungs, into the intestines, and stopped in the back muscle area. Strauch testified that one of the wounds to the torso would have caused bleeding but would be survivable, but the other wound to the torso would have been fatal, as it went through the left lung. According to Strauch, Dr. Wayne's report indicated that Riojas had lost nearly half of his blood volume from these injuries. Strauch further testified that the wound to the right thigh was fatal, as the femoral artery is in this area. Strauch testified that a toxicology report of Riojas indicated that caffeine and lidocaine were present, and that the lidocaine was likely administered by EMS personnel as part of their advanced cardiac life-support assistance. Dr. Wayne's report concluded that the cause of Riojas's death was gunshot wounds and the manner of death was homicide.
Dr. Strauch also testified that four projectiles were recovered from Riojas's body. On cross-examination, Dr. Strauch testified that Dr. Wayne's report indicated that the "[e]stimated range of fire is distant." She further testified that she was not able to determine the caliber of the weapons that caused Riojas's wounds.
Testimony of Marie Kirkland
Marie Kirkland testified that she is a crime scene investigator for the Port Arthur Police Department, and she worked on the security video in this case and helped with search warrants. Kirkland agreed she took photos of the Navigator and of the inside of the apartment where Mosley lived. Kirkland testified that the apartment looked like people had only been living there a short time, and a pistol was found in the back bedroom. She agreed she took the Ruger 9mm pistol and put it into evidence. Kirkland further agreed that she attended the Riojas autopsy and helped search the Navigator. Kirkland identified State's Exhibits 69 and 70 as a black and gray winter skull mask and a dark blue winter face mask that were found in the console of the Navigator. And Kirkland identified State's Exhibits 85 through 87 as the bullets that were recovered during the Riojas autopsy.
Testimony of Leesa Bigelow
Leesa Bigelow testified that she is a crime scene investigator, forensic specialist, with the Port Arthur Police Department. She agreed she collected a buccal swab from Jeremy Roy in this case.
Testimony of Sherry Droddy
Sherry Droddy testified that she is an evidence technician with the Port Arthur Police Department. She agreed she transported State's Exhibit 69 and 70-the two face masks-to the Texas Department of Public Safety ("DPS") Crime Lab in Houston.
Testimony of Amanda Domer
Amanda Domer testified that she works at the DPS Safety Crime Lab in Houston where she is a forensic scientist in the biology and DNA section. Domer explained that a forensic biologist examines evidence for biological fluids or genetic material. Domer identified State's Exhibit 79 as an envelope containing buccal swabs from Larnell Mosley delivered to her lab by the Port Arthur Police Department. Domer testified that, in this case, she prepared a portion of the sample for DNA analysis, and someone else performed a DNA analysis.
Testimony of Kerry Todd
Kerry Todd testified that she is a forensic scientist for the DPS Crime Laboratory in Houston where she "help[s] move samples through the DNA process," comparing a DNA sample from a crime scene and comparing it to a known sample, and she writes DNA reports. Todd identified State's Exhibits 69, 70, 79, and 80 as envelopes from their lab with Domer's initials and dates. Todd read from her report and testified as follows about the results of testing on the black mask admitted as Exhibit 69:
The DNA profile is interpreted as a mixture of three individuals. The probability of obtaining this mixture profile if the DNA came from Jeremy Roy and two unrelated unknown individuals is 103 septillion times greater than the probability of obtaining this profile if the DNA came from three unrelated, unknown individuals. This likelihood ratio indicates support for the proposition that Jeremy Roy is a possible contributor to the profile.
The probability of obtaining this mixture profile if the DNA came from Larnell Mosley and two unrelated, unknown individuals is 52.9 sextillion times greater than the probability of obtaining this profile if the DNA came from three unrelated unknown individuals. This likelihood ratio indicates support for the proposition that Larnell Mosley is a possible contributor to the profile.
According to Todd, Jose Riojas was excluded as a contributor to the profile. Testifying about the results of testing on the blue mask admitted as Exhibit 70, Todd stated as follows:
The DNA profile is interpreted as a mixture of three individuals. The probability of obtaining this mixture profile if the DNA came from Larnell Mosley and two unrelated unknown individuals is 4.41 octillion times greater than the probability of obtaining this profile if the DNA came from three unrelated, unknown individuals. This likelihood ratio indicates support for the proposition that Larnell Mosley is a possible contributor to the profile.
The probability of obtaining this mixture profile if the DNA came from Jeremy Roy and two unrelated, unknown individuals is five times greater than the probability of obtaining this profile if the DNA came from three unrelated, unknown individuals. This likelihood ratio indicates support for the proposition that Jeremy Roy is a possible contributor to the profile. A likelihood ra[t]io of this value may also indicate support for a non-donor being a contributor to the profile.
According to Todd, Jose Riojas was excluded as a contributor to the profile. Todd further testified that the earth's population was eight billion. On cross-examination, Todd testified that she did not know how the DNA got onto the masks.
Testimony of Hunter Jones
Hunter Jones testified that he is a firearms examiner with the Jefferson County Crime Lab and a licensed forensic analyst. Jones identified State's Exhibits 71 through 76 as casings that were turned over to the lab in this case. Jones identified Exhibit 77 as a "Ruger, model EC9, semiautomatic 9mm Ruger caliber pistol." Jones testified that the pistol functioned properly when he tested it. According to Jones, when he analyzed the spent bullets in Exhibits 85, 86, and 87 and compared them with the Ruger, he concluded that the bullets came from the Ruger admitted as State's Exhibit 77 and the three bullets recovered from Riojas's body were fired from the Ruger. Jones also testified that he tested the casings found at the Riojas home and a jacket fragment in a piece of wood from the Riojas home, and he determined the projectiles were fired from the Ruger admitted as Exhibit 77. Jones further identified State's Exhibit 88 as a fired Federal brand .40 Smith &Wesson caliber cartridge case and State's Exhibit 89 as a fired and damaged copper-jacketed bullet from a .40 or .10mm caliber class bullet. Jones agreed that the Ruger in State's Exhibit 77 was a deadly weapon capable of causing serious bodily injury or death. On cross-examination, Jones agreed that at least two pistols were involved.
After the State rested, the defense rested without calling any witnesses. The jury found Mosley guilty as charged in the indictment. After a hearing on punishment, the jury assessed punishment at sixty years of confinement. The trial court sentenced Mosley in accordance with the jury's verdict, and Mosley timely appealed.
Sufficiency of the Evidence
In Appellant's first issue on appeal, he challenges the sufficiency of the evidence to support his conviction. Appellant argues that, although the evidence at trial created a suspicion of guilt, the evidence failed to support his conviction beyond a reasonable doubt. Appellant further argues that no eyewitness sufficiently identified Appellant as the perpetrator, and the State's evidence was circumstantial and lacking in detail. In addition, Appellant argues that his "confession" was obtained unethically because the investigator lied to him. According to Appellant, because the State's evidence "rests entirely upon inconclusive evidence and subsequent speculation[,]" it fails to support his guilt beyond a reasonable doubt.
Appellant does not argue that his statement was not voluntary nor does he raise a constitutional challenge.
In reviewing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We give deference to the factfinder's responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. If the record contains conflicting inferences, we must presume that the factfinder resolved such facts in favor of the verdict, and we defer to that resolution. Brooks v. State, 323 S.W.3d 893, 899 n.13 (Tex. Crim. App. 2010) (citing Jackson, 443 U.S. at 326); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The jury as factfinder is the sole judge of the weight of the evidence and credibility of the witnesses, and a jury may believe all, some, or none of the testimony presented by the parties. See Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018) (citing Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000), overruled on other grounds by Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009)); Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). A jury may also draw reasonable inferences from the evidence presented at trial. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). The appellate court does not reweigh the evidence nor determine the credibility of the evidence, nor does it substitute its own judgment for that of the factfinder. Febus, 542 S.W.3d at 572; Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
"Direct and circumstantial evidence are treated equally: 'Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.'" Clayton, 235 S.W.3d at 778 (quoting Hooper, 214 S.W.3d at 13). Each fact need not point directly and independently to the guilt of the defendant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013); Hooper, 214 S.W.3d at 13; Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
A person commits murder if he "intentionally or knowingly causes the death of an individual[.]" See Tex. Penal Code Ann. § 19.02(b)(1). A person acts intentionally with respect to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the results. See id. § 6.03(a). A person acts knowingly with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. See id. § 6.03(b).
In this case, the jury charge included an instruction on liability under the law of parties. Under the law of parties, "[a] person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Id. § 7.01(a); Adames v. State, 353 S.W.3d 854, 862 (Tex. Crim. App. 2011). Culpability under the law of parties does not distinguish between principals or accomplices. See Tex. Penal Code Ann. § 7.01(c). A person is criminally responsible for an offense committed by the conduct of another if "acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense[.]" Id. § 7.02(a)(2); Adames, 353 S.W.3d at 862. "'Evidence is sufficient to convict under the law of parties where the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement.'" Salinas v. State, 163 S.W.3d 734, 739 (Tex. Crim. App. 2005) (quoting Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994)). Party participation may be shown by events occurring before, during, and after the commission of the offense, and may be demonstrated by actions showing an understanding and common design to do the prohibited act. Id. at 739-40.
Appellant does not challenge the jury charge on appeal, nor does the record reflect that he challenged the law-of-parties instruction in the trial court.
In this case, a security guard where Riojas and Mosley worked testified that he saw an altercation between Riojas and Mosley over Mosley's tools and heard Mosley tell Riojas, "I know where you stay. I'll kill you." The jury saw State's Exhibit 3-security video from the Riojas home-which showed two men approach the front door wearing sunglasses, masks or gaiters, and caps, and the security video also showed one of the men firing a gun multiple times. The jury also saw security video from other homes near the Riojas home, which showed a Navigator SUV driving slowly in the neighborhood. Detective Cousins testified that a Navigator was located at the complex where Mosley lived, the Navigator had mud on it like the mud in the streets in the neighborhood where Riojas lived, and the Navigator was registered to Mosley's girlfriend. After obtaining a search warrant, police searched the Navigator and found a pair of black gloves and two neck gaiters or masks, which was consistent with the security video from the Riojas home. DNA testing on the face masks recovered from the Navigator determined that Larnell Mosley and Jeremy Roy were likely contributors. In a search of Mosley's home, police found a Ruger 9mm pistol, and a firearms examiner testified that the casings at the Riojas home and the bullets found in Riojas's body matched the Ruger. Dr. Strauch testified that Riojas's cause of death was gunshot wounds, and at least three of the wounds would have been fatal. In his recorded statement, Mosley told police officers that he thought Riojas took his work tools, Mosley was "fed up," and Mosley went to Riojas's home where he pulled out his gun and shot Riojas. Mosley also told police that Jeremy Roy went to Riojas's home with him.
On this record, we cannot say that the evidence of Appellant's guilt was only speculative. The jury could have made reasonable inferences from the evidence and found that the evidence showed beyond a reasonable doubt that Mosley "act[ed] with the intent to promote or assist in the commission of the [murder], [and that] he solicit[ed], encourage[d], direct[ed], aide[d], or attempt[ed] to aid the other person to commit the [murder]." See Tex. Penal Code Ann. §§ 7.01(a), 7.02(a)(2), 19.02(b)(1); Adames, 353 S.W.3d at 862-63; Salinas, 163 S.W.3d at 739. Mosley was with Roy. Mosley admitted he went to Riojas's residence to get his tools in his girlfriend's vehicle. Mosley had been heard to threaten Riojas, saying, "I know where you stay. I'll kill you," earlier on the day of the murder. His DNA was confirmed on one of the masks seen in the video from the Riojas home monitors, among other evidence. After reviewing all the evidence and viewing the evidence in the light most favorable to the verdict, we conclude that a rational factfinder could have found the essential elements beyond a reasonable doubt necessary to conclude that Appellant was criminally responsible under the law of parties for the offense of murder of Jose Riojas. See Adames, 353 S.W.3d at 862-63; Hooper, 214 S.W.3d at 13; Salinas, 163 S.W.3d at 739.
As for Appellant's argument that his confession was obtained unethically "by the use of lies and untruths by law enforcement[,]" Appellant's brief cites to no legal authority in support of this argument. See Tex.R.App.P. 38.1(i). The Court of Criminal Appeals has explained that "[t]rickery or deception does not make a statement involuntary unless the method was calculated to produce an untruthful confession or was offensive to due process." Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997). Appellant does not contend that his statements to law enforcement were involuntary. The record includes no motion to suppress Mosley's statement to law enforcement, and the record reflects that Appellant did not object to the admission of his recorded interview by law enforcement. Therefore, we reject this argument. Having concluded that the evidence is sufficient to support his conviction, we overrule Appellant's first issue on appeal.
Admission of Evidence
In his second issue, Appellant challenges the admission of two photographs of the victim. Appellant argues that State's Exhibit 81 and 82-photos that depict Appellant with his family-were "irrelevant to the issues before the jury and prejudicial to the defense." Appellant further argues that the prejudicial nature of the evidence was exacerbated because they were offered through the victim's wife, whom Appellant characterizes as an "understandably sympathetic witness[.]" In addition, Appellant argues that the photos lacked any probative value and that "nothing would have prevented the State from properly cropping the photographs to remove the other family members[.]" According to Appellant, evidence that the victim was peaceable and inoffensive is only admissible in rebuttal when the defense has put the deceased's character at issue, citing Arthur v. State, 339 S.W.2d 538, 539 (Tex. Crim. App. 1960). Appellant also argues that the trial court failed to conduct a Rule 403 balancing test.
We review a trial court's ruling on the admission of evidence under an abuse of discretion standard of review. Gonzalez v. State, 616 S.W.3d 585, 594 (Tex. Crim. App. 2020). A trial court abuses its discretion when it acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). "As long as the trial court's ruling is within the 'zone of reasonable disagreement,' there is no abuse of discretion, and the trial court's ruling will be upheld." De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009) (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op on reh'g)); State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). If the trial court's decision is correct on any theory of law applicable to the case, we will uphold the decision. De La Paz, 279 S.W.3d at 344; Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).
The erroneous admission or exclusion of evidence is generally reviewed under the standard for non-constitutional error contained in Rule 44.2(b) of the Texas Rules of Appellate Procedure if the trial court's ruling merely offends the rules of evidence. See Walters v. State, 247 S.W.3d 204, 218-19 (Tex. Crim. App. 2007); Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). Under Rule 44.2(b), even if the trial court erred in admitting the evidence, we may not overturn a criminal conviction for non-constitutional error if, after examining the record as a whole, we have fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict. Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). In our determination of whether error adversely affected the jury's decision, we consider everything in the record, including testimony, physical evidence, jury instructions, the State's theories, any defensive theories, closing arguments, and voir dire. Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014).
Evidence is relevant if it has any tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018) (citing Tex. R. Evid. 401). Relevant evidence is generally admissible. See Tex. R. Evid. 402; Gonzalez, 544 S.W.3d at 370. Even if the evidence is relevant, a trial court may determine that it is not admissible because the danger of unfair prejudice outweighs the evidence's probative value. See Tex. R. Evid. 403.
Relevant evidence may still be excluded under Rule 403 "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Tex. R. Evid. 403. "Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial." Montgomery, 810 S.W.2d at 389; Gittens v. State, 560 S.W.3d 725, 732 (Tex. App.-San Antonio 2018, pet. ref'd). A trial court must, upon proper objection by the opponent of the evidence, weigh the probative value of the evidence against its potential for unfair prejudice. See Tex. R. Evid. 403.
[W]hen undertaking a Rule 403 analysis, [the trial court] must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006); see also Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). Once a Rule 403 objection as to prejudice versus probative value is invoked, the trial court has no discretion whether to engage in the balancing test required by that rule. Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997). However, the trial court is not required to place its findings or conclusions on the record when engaging in the balancing test, and the trial court is presumed to engage in the required balancing test once Rule 403 has been invoked. Id.
At trial, the State introduced Exhibits 81 and 82-photos of Riojas with his children-during the testimony of Sylvia Riojas. The record does not indicate that the State used the photos to prove Riojas's good character or used the photos to confuse the issues or mislead the jury. Although Appellant argues that "[t]he obvious purpose was to inflame the jury against [A]ppellant, and it apparently worked[,]" however Appellant cites to no portion of the record in support of this allegation. See Tex. R. App. P. 38.1(i) (an appellate brief must cite to the record and to appropriate legal authority). The trial court was not required to engage in a Rule 403 balancing test on the record. See Williams, 958 S.W.2d at 195. We conclude that the trial court's admission of Exhibit 81 and 82 was not an abuse of discretion, and the trial court's ruling was within the zone of reasonable disagreement. See Gonzalez, 616 S.W.3d at 594; De La Paz, 279 S.W.3d at 343-44.
That said, even if the trial court erred in overruling Mosley's objection, we will not reverse the judgment if the error is harmless. See Tex.R.App.P. 44.2. "The erroneous admission of evidence is non-constitutional error." Gonzalez, 544 S.W.3d at 373 (citing Taylor v. State, 268 S.W.3d 571, 592 (Tex. Crim. App. 2008)). We will disregard non-constitutional error that does not affect a criminal defendant's substantial rights. See Tex.R.App.P. 44.2(b). The Court of Criminal Appeals has construed this to mean that "an error is reversible only when it has a substantial and injurious effect or influence in determin[ing] the jury's verdict." Gonzales, 544 S.W.3d at 373 (citing Taylor, 268 S.W.3d at 592). "If we have a fair assurance from an examination of the record as a whole that the error did not influence the jury, or had but a slight effect, we will not overturn the conviction." Id. In determining whether an error affected an appellant's substantial rights, the court should consider: "(1) the character of the alleged error and how it might be considered in connection with other evidence; (2) the nature of the evidence supporting the verdict; (3) the existence and degree of additional evidence indicating guilt; and (4) whether the State emphasized the complained of error." Id.
The record reflects that the State did not dwell on the family photos nor use them to elicit testimony about Riojas's character. Sylvia Riojas testified that she and her husband had children together, and the defense did not object to her testimony. See Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) ("An error in the admission of evidence is cured where the same evidence comes in elsewhere without objection."). In light of the entire record and evidence supporting the verdict, we cannot say that admission of the family photos had a substantial and injurious effect or influence in determining the jury's verdict. See Tex.R.App.P. 44.2; Gonzales, 544 S.W.3d at 373. We overrule Appellant's second issue.
Having overruled all of Appellant's issues, we affirm the trial court's judgment of conviction.
AFFIRMED.