Opinion
NO. 01-16-00580-CR
05-23-2017
GILBERTO OLGUIN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court Harris County, Texas
Trial Court Case No. 1411884
MEMORANDUM OPINION
A jury convicted appellant, Gilberto Olguin, of capital murder, and, because the State did not seek the death penalty, the trial court assessed his punishment at confinement for life. In his sole issue on appeal, appellant contends that the State failed to present sufficient evidence that he committed capital murder as a co-conspirator because it presented no evidence that he should have anticipated that his co-conspirator would shoot the complainant during the course of a robbery.
See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2016).
We affirm.
Background
On January 17, 2011, Matthew Shalouei, an acquaintance of appellant's, robbed an illegal game room located on South Mason Road in west Harris County. Three surveillance cameras monitored the entrance to this game room and the surrounding area outside. Patrons of the game room could not enter freely. A patron first had to wait outside a set of glass doors, visible on one of the security cameras, and if the operator of the game room decided to admit the patron, the operator would remotely unlock the glass doors. Immediately inside the glass doors was a small vestibule and then a second doorway, which led into the main part of the game room that housed eight-liners and other gaming machines. The second doorway also had a lock, and patrons had to be admitted through that door by the operator. The trial court admitted still photographs and video surveillance of Shalouei entering the game room on January 17. The operators of the game room did not report this robbery to the police.
The next evening, on January 18, 2011, Shalouei called Jonathan Rodriguez, who was hanging out at his house with appellant. Shalouei proposed a second robbery of the game room, but, because he had been seen on the game room's surveillance system the previous night, he requested that appellant ring the doorbell to be admitted into the game room. Appellant and Rodriguez agreed to participate in the robbery. Appellant, Rodriguez, and Shalouei were all seventeen years old at the time.
Shalouei picked up appellant and Rodriguez from Rodriguez's house and drove them to appellant's house, where appellant grabbed a firearm that he had purchased several months before. Appellant had not used this firearm for anything since he had purchased it, and he had not purchased bullets for the gun. When asked why he picked up his gun from his house, appellant, who testified on his own behalf at trial, stated, "To display, I mean, I would go, I was to go behind [Shalouei]. So, really kind of just to have it as to let [the operators of the game room] know that I have a firearm." Appellant had never seen Shalouei with a firearm before this time, but he knew that Shalouei had a firearm with him when they went to the game room.
According to appellant, Shalouei told him that someone at the game room knew what Shalouei had planned for the second robbery, and because of this, appellant should not be worried about the surveillance cameras. Shalouei told appellant about the robbery that he had conducted the night before, and he told appellant that the first robbery had not been reported to the police. As they walked up to the game room, Shalouei took three bullets from his own gun and loaded them into appellant's gun. Appellant testified, "And [Shalouei] just said, well, you know, if anything happens just kind of shoot in the air or something so that—because we were going in to rob, so to scare them."
Appellant's "main instruction" was to go to the front door of the game room and ring the doorbell. Appellant rang the doorbell and asked the operator if there were slot machines present, and the trial court admitted still photographs and surveillance footage that showed this. Shalouei stood to appellant's side, and Rodriguez waited in the car. After appellant rang the doorbell, Ly Pham, the complainant, admitted appellant, and the glass doors at the front of the game room unlocked. Shalouei pulled out his gun and rushed around appellant, and when Pham appeared in the vestibule near the glass doors, Shalouei demanded, "Give me your money." Appellant pulled out his gun when Shalouei stepped next to him. Pham yelled at Shalouei and reached for his own firearm, and Shalouei then shot Pham.
After the shooting, Shalouei ran back to the car. Appellant did not know if Pham had been hit by Shalouei's gunshot, but he decided to run after Shalouei started running. On the surveillance video admitted by the trial court, both Shalouei and appellant are visible running from the game room with firearms in their hands. As he was running away, appellant dropped his cell phone. After appellant expressed his hesitation about retrieving his phone, Rodriguez told him to go back and get the phone and to shoot his gun in the air. Appellant grabbed his cell phone and shot his gun three times, "[t]owards the direction of the building but high." Rodriguez drove the group to a bar, and they had several drinks and discussed what had happened, which included Shalouei telling appellant that Shalouei's gunshot had hit Pham.
Appellant spent the night at Rodriguez's house, and Rodriguez's father drove him home the next day, January 19, 2011. Shalouei was pulled over for a traffic stop by Katy Police Department Corporal J. Orsak early in the morning on January 19, several hours after the shooting at the game room. Shalouei immediately got out of his car and placed his hands on the roof before Corporal Orsak could approach Shalouei's car, which made Orsak suspicious. Shalouei was acting "nervous and a little panicked," and when Corporal Orsak approached, he could smell marijuana. When he searched the vehicle, he found marijuana and a firearm. Harris County Sheriff's Office Deputy C. Pool, the lead investigator assigned to the game room shooting, interviewed Shalouei and learned of appellant's involvement in the shooting. Deputies arrested appellant on the evening of January 19. Appellant admitted his role in the offense during his custodial interview, and this interview was played for the jury.
Pham was shot once in the chest. The bullet entered the left side of Pham's chest, exited Pham's body just under his right armpit, and re-entered Pham's right arm. Pham died as a result of this injury, and the bullet was recovered during the autopsy.
Three weapons were recovered during the course of the investigation: Pham's firearm, which was found near his body; Shalouei's firearm, recovered during his traffic stop; and appellant's firearm, recovered during a search of his residence. All three firearms were test-fired, and the spent bullets and casings were compared to bullets and casings recovered from the scene. Investigators matched a fired cartridge casing found inside the vestibule of the game room and the bullet found in Pham's arm to Shalouei's gun. Investigators matched three fired cartridge casings found approximately forty feet from the entrance to the game room to appellant's gun.
On cross-examination, appellant testified that he was hesitant about performing his role in the robbery and that, when Shalouei noticed this, he told appellant, "[D]on't worry I have somebody that knows this [robbery] is going to happen that set up the lick. I've done it before. They're not going to call the cops, and just follow my lead." Appellant acknowledged that he was afraid of getting caught and afraid of getting killed during the robbery, and he agreed with the prosecutor's statement that "when you run into a place with guns, chances are someone could get shot." Shalouei told appellant that he could possibly get $10,000 from the robbery. Appellant agreed that part of his role in the robbery was "to have a gun to scare people, to point at people, to get them to comply with your demands for the money." He admitted racking his gun to put a bullet in the chamber after Shalouei loaded his gun for him. Appellant also agreed that "if your goal is just to go in and scare someone, take their money, there's no need to load a gun and take a loaded gun to a robbery."
The jury charge authorized the jury to convict appellant as a primary actor, under the law of parties, or as a conspirator. The jury found appellant guilty of capital murder, and because the State did not seek the death penalty, the trial court automatically assessed appellant's punishment at confinement for life. This appeal followed.
Sufficiency of the Evidence
In his sole issue, appellant contends that the State failed to present sufficient evidence that he should have anticipated that Shalouei, his co-conspirator, would shoot Pham during the course of committing the robbery and, thus, insufficient evidence supports his conviction for capital murder under the theory of co-conspirator liability. A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016). The jurors are the exclusive judges of the facts and the weight to be given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). We may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost complete deference to the jury's credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) ("When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination.").
Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at 778). "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). B. Capital Murder as a Co-Conspirator
A person commits the offense of capital murder if he intentionally or knowingly causes the death of an individual and he intentionally commits the murder in the course of committing or attempting to commit robbery. TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2016). 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 both." Id. § 7.01(a) (West 2011). A person is criminally responsible for an offense committed by another if the person, acting with intent to promote or assist the commission of the offense, solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2) (West 2011). Section 7.02(b) further provides:
If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.Id. § 7.02(b); see Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (stating that person may be convicted of capital murder as party to offense without having had intent to commit murder).
Here, it is undisputed that appellant entered into a conspiracy with Rodriguez and Shalouei to rob the game room, that in the course of committing this robbery, Shalouei shot and killed Pham, and that this murder was committed in furtherance of the conspiracy to commit robbery. Appellant contends on appeal that the State failed to present evidence that the murder of Pham was an offense that should have been anticipated as a result of the carrying out of the conspiracy to commit robbery.
To determine whether a defendant is culpable as a party to an offense, the court "may look to events which occurred before, during, and after the commission of the offense," and the court "may rely on actions of the defendant which show an understanding and common design to commit the underlying felony in a manner which demonstrates knowledge of the risk that murder was a reasonably foreseeable result." Nickerson v. State, 478 S.W.3d 744, 756 (Tex. App.—Houston [1st Dist.] 2015, no pet.). Evidence that a defendant knew that his co-conspirator might use a gun during the course of the robbery can be sufficient to demonstrate that the defendant should have anticipated the possibility of murder occurring during the course of the robbery. Johnson v. State, 421 S.W.3d 893, 899 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Davis v. State, 276 S.W.3d 491, 495 (Tex. App.—Waco 2008, pet. ref'd); Love v. State, 199 S.W.3d 447, 453 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd). Knowledge of a co-conspirator's violent propensity is not an element of an offense under theories of party liability, "so the lack of evidence of such knowledge is not dispositive of [the] sufficiency" of evidence inquiry. See Hooper, 214 S.W.3d at 14 (stating such in aggravated assault case).
The State presented evidence that Shalouei approached appellant and Rodriguez with a plan to rob a game room where illegal gambling occurred. Shalouei had robbed the game room the previous evening, and he requested that appellant accompany him to the door and ring the doorbell to gain admittance to the game room as Shalouei would likely be recognized on the surveillance system. After appellant and Rodriguez agreed to participate in the robbery, Shalouei drove the others to appellant's house solely to allow appellant to pick up the gun he had purchased several months earlier. Appellant intended to display the gun during the robbery as an intimidation tactic. Before Shalouei and appellant approached the game room's front doors, Shalouei took three bullets from his own gun and loaded them into appellant's gun. Both Shalouei and appellant racked bullets in the chambers of their respective guns. After speaking with Pham at the door, appellant pulled his gun out of his waistband when Shalouei stepped next to him, and Shalouei pulled out his own gun as he rushed around appellant once the front doors opened. After Shalouei demanded money, Pham pulled out his firearm, and Shalouei shot him once, ultimately killing him. Shalouei and appellant ran away, and appellant fired three shots from his firearm when he ran back towards the game room to retrieve his cell phone.
Thus, in this case, not only was appellant aware that Shalouei, his co-conspirator, had a loaded firearm with him at the time of the robbery, appellant himself also had a loaded firearm, which he intended to display to scare anyone who tried to resist their robbery attempt at a game room, a place where illegal activity occurred. As this Court and our sister courts have held, "[e]vidence that a defendant knew his co-conspirators might use guns in the course of the robbery can be sufficient to demonstrate that the defendant should have anticipated the possibility of murder occurring during the course of the robbery." Canfield v. State, 429 S.W.3d 54, 69 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd); Johnson, 421 S.W.3d at 899; Davis, 276 S.W.3d at 495; Love, 199 S.W.3d at 453.
Appellant argues that his case is distinguishable from this Court's decision in Love, in which we held that the State presented sufficient evidence that the defendant, although not present at the time of a robbery and murder at the Whataburger where he worked, should have anticipated the possibility of one of his co-conspirators committing murder during the course of the robbery that he had helped plan. See 199 S.W.3d at 453-54. In affirming Love's conviction, this Court noted that Love had told one of his co-conspirators that he should not believe any employee who told the co-conspirator that he did not have keys to the restaurant's safe because that individual would have keys; that the employee whom Love had left in charge of the restaurant in his stead, the complainant, was an intellectually disabled man who loved his job and who was very protective of the Whataburger where he worked and would likely try to protect the restaurant by refusing access to the safe; and that Love, who had orchestrated a "thwarted robbery attempt" involving the co-conspirators prior to the actual robbery, knew the co-conspirators would likely carry guns during the robbery. Id. We stated that evidence that a defendant knew his co-conspirators might use guns during the course of the robbery can be sufficient to demonstrate that the defendant should have anticipated the possibility of murder occurring during the robbery, and we held that the jury could have concluded that Love should have reasonably anticipated the possibility of a murder occurring during the course of the robbery. Id.
Appellant argues that this case is distinguishable from Love because, here, aside from the presence of the gun, he had no reason to anticipate that Shalouei would commit a murder during the course of robbing the game room. Specifically, he argues that Shalouei had robbed the game room the night before without using violence, that Shalouei told him that the robbery was an "inside job" and would be conducted with the knowledge of someone who worked at the game room, and that appellant retrieved an unloaded pistol that he only intended to use to scare people at the game room. As the State points out, however, it is reasonable to infer from the fact that Shalouei had robbed the game room the night before, albeit without violence on that occasion, that the operators of the game room would be on guard concerning the possibility of another robbery and might resort to violence to protect their money and their business. Pham had a firearm with him when he opened the door to let appellant into the game room, and he reached for his weapon when Shalouei rushed past appellant and demanded money. Appellant himself acknowledged that Pham appeared to recognize Shalouei and therefore reached for his weapon, which led to Shalouei's shooting Pham.
Appellant emphasizes Shalouei's statement to him that a person working at the game room knew that Shalouei had planned a second robbery, but this does not diminish the likelihood that someone else at the game room, either another worker or a patron, might react with violence upon being robbed. Furthermore, although appellant "retrieved an unloaded pistol that he intended only to display for the purpose of scaring people," right before appellant and Shalouei approached the game room, Shalouei loaded three bullets from his gun into appellant's gun. Appellant thus knew that Shalouei had a loaded gun with him, and he himself carried a loaded gun. Appellant acknowledged that he had loaded his gun "just in case" someone at the game room did not comply with the demand to hand over money, wanted to fight back, or decided to pull out their own weapon. As in Love, based on the facts of this case, a jury could have concluded that appellant should have reasonably anticipated the possibility of a murder occurring during the course of robbing the game room. See id. at 454; see also Whitmire v. State, 183 S.W.3d 522, 526-27 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd) (stating, in case in which defendant "enlisted the help of two armed men to rob a potentially-armed drug dealer," that "[i]t is perfectly foreseeable that a murder would result from an armed confrontation such as this one").
Appellant also cites Walker v. State, an unpublished decision from the Court of Criminal Appeals, in support of his argument that "[t]he only evidence that [he] should have anticipated the murder was the presence of a firearm." In Walker, an injury to a child case, the State alleged that the defendants had intentionally submerged their granddaughter's feet in hot water, causing second-degree burns to her feet and ankles. See No. PD-1429-14, 2016 WL 6092523, at *1 (Tex. Crim. App. Oct. 19, 2016) (not designated for publication). Numerous witnesses, including several medical experts, testified concerning "what they believed had happened" to the child, but "none of the nineteen witnesses could testify as to what actually happened, who was present when the injuries occurred, or who was at fault." Id. at *12. Ultimately, the Court of Criminal Appeals held that "a rational jury would have had at most only a strong suspicion of guilt under these circumstances," and it reversed the Walkers' convictions and rendered judgments of acquittal. Id. at *16.
In relying on Walker, appellant states that his testimony "provided all of the evidence concerning the events that proceeded the murder," but the presence of a firearm was the only evidence that he should have anticipated the murder. The State presented evidence, however, that both appellant and his co-conspirator Shalouei brought loaded firearms to rob a game room, a place where illegal activity occurs and a place that Shalouei had already robbed one day before the incident at issue. Under these circumstances, a jury could reasonably conclude that appellant should have anticipated the possibility of a murder occurring during the course of the robbery. See TEX. PENAL CODE ANN. § 7.02(b); Nickerson, 478 S.W.3d at 756. We hold that the State presented sufficient evidence to support appellant's conviction of capital murder as a co-conspirator.
We overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice Panel consists of Justices Keyes, Bland, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).