Summary
holding evidence sufficient to support finding that appellant was guilty as a principal or as a party to the offense of capital murder
Summary of this case from Gonzalez v. StateOpinion
No. 05-02-00312-CR.
Opinion issued June 9, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F01-73911-VL. AFFIRMED.
OPINION
Torey Farlando Pirtle appeals his conviction for the capital murder of Johnny Barrett, Sr. (Barrett). After appellant pleaded not guilty, the jury found him guilty and made an affirmative finding that appellant used or exhibited a firearm, a deadly weapon, during the commission of the offense. The trial judge assessed punishment at life confinement. In six points of error, appellant claims the evidence is legally and factually insufficient to support his conviction and the trial judge erred in (i) commenting on the weight of the evidence and (ii) "failing to define or apply the requisite mental states" for the jury. We affirm the trial court's judgment. Sufficiency of the Evidence In his first and second points of error, appellant claims we must reverse his conviction for capital murder because the evidence is legally and factually insufficient to prove appellant committed robbery or attempted robbery as the primary actor. In his third and fourth points of error, appellant argues the evidence is legally and factually insufficient to prove appellant committed robbery or attempted robbery as a party. In reviewing challenges to the sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000); Johnson v. State, 23 S.W.3d 1, 7-8 (Tex.Crim.App. 2000). 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). A person commits robbery or attempted robbery if, in the course of committing or attempting to commit theft, he intentionally, knowingly, or recklessly (i) causes bodily injury to another or (ii) threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. §§ 15.01(a), 29.02 (Vernon 2003). "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." Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). A person is criminally responsible for the conduct of another if "acting with 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[.]" Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003); see Fuller v.State, 827 S.W.2d 919, 932 (Tex.Crim.App. 1992). Evidence is legally sufficient to support a conviction under section 7.02(a)(2) where "the actor is physically present at the commission of the offense, and encourages the commission of the offense either by words or other agreement." Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim.App. 1986) (citing Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App. 1985)). To determine whether a person is guilty as a party under section 7.02(a), the jury may consider events occurring before, during, and after commission of the offense and may rely on actions of the defendant that show an understanding and common design to commit the offense. See Burdine, 719 S.W.2d at 315; Beier v. State, 687 S.W.2d 2, 4 (Tex.Crim.App. 1985); Vasquez v. State, 804 S.W.2d 606, 610 (Tex.App.-Dallas 1991, no pet.); Hanson v. State, 55 S.W.3d 681, 690 (Tex.App.-Austin 2001, pet. ref'd). In addition, when determining whether an agreement to commit the underlying offense exists, the jury may infer knowledge and intent from the acts, words, and conduct of the accused. See Martinez v. State, 653 S.W.2d 630, 634 (Tex.App.-San Antonio 1983, pet. ref'd). Appellant does not contend the evidence is legally or factually insufficient to support his conviction for murder; he only claims the State failed to prove he committed robbery or attempted to commit robbery either as a principal or as a party. After reviewing the record under the appropriate standards, we cannot agree. At trial, Johnny Barrett, Jr. (Johnny) testified that sometime after 11:00 p.m. on the night of April 4, 2001, his father, Barrett, woke him and told him appellant was there to see him. Johnny went into the living room where appellant was waiting. Appellant told Johnny "to come ride with him" and show him where the "wet house" was. Johnny testified that "wet" is liquid phencyclidine (PCP). Johnny and appellant left the apartment and walked to appellant's car. In the car, Bryan Adams, Corey Williams, and a Hispanic man were waiting. The five men rode to the wet house in south Dallas, smoking a marijuana joint on the way. Appellant went inside the house and bought two $20 bottles of PCP using money he, Corey, and Bryan supplied. The men then drove around, smoking the PCP. According to Johnny, appellant got hyper when he smoked PCP. They drove to the gate at Johnny's apartment complex, and Johnny gave appellant the code to get in. Appellant punched in the code, then said, "You know what time it is. Where is the money?" Johnny noticed appellant had a pistol in his hand and was pointing it at him. Believing it was a joke, Johnny said, "Come on, man. What you talking about?" Appellant said, "You know you gonna die." Appellant, Corey, and Bryan began beating Johnny up and threatened to kill him. Appellant and Bryan got out of the car and told everyone else to stay in the car. Corey held a knife to Johnny's neck and told him he would kill Johnny if he moved. Johnny assumed they were going to his apartment to rob his parents. After awhile, appellant and Bryan returned. Johnny heard his mother screaming and then heard the Hispanic man yell, "Let her go. Let her go." The Hispanic man then told appellant, "[C]ome on. We gotta go. Let her go." The men drove to appellant's apartment, and Johnny was dragged inside. He later escaped and ran to a friend's house. He told the friend they had been robbed. He then called his aunt and was told his father had been killed. Fannie Barrett testified she and Barrett were married eighteen years. She, Barrett, Johnny, and Johnny's eight-year-old brother, Jacoby, lived in an apartment at Royal Lane and Abrams Road. She and her husband had both been off work due to injuries. Her husband mowed lawns to support the family, and during the three months prior to his death, he sold "weed" (marijuana). On the evening of April 4, 2001, she woke up and walked out of her bedroom to go to the bathroom. Bryan grabbed her and put a gun to her head. He forced her into the living room where appellant was pointing a gun at Barrett's head. Fannie recognized appellant because he had been in her home before. Fannie noticed Bryan was holding a cigar box from her bedroom dresser. The box contained money, watches, and rings. Barrett told appellant to "go on and leave his family alone; that [appellant] got everything that he wanted." Appellant told him to be quiet, then asked "where is the stuff." He also asked if there was anyone else in the house. Barrett told appellant that Jacoby was in bed. Appellant walked out of the living room toward the bedroom where Jacoby was sleeping. Barrett followed him. The men returned, and Barrett again urged appellant to leave his family alone. Appellant walked back to the bedroom, returning with Fannie's purse. According to Fannie, her purse contained money and a cell phone. On his third trip, Barrett followed him and approximately three minutes later, Fannie heard several gunshots. She ran to the patio door, opened it, and jumped out on the patio. She jumped over the fence but appellant caught her and grabbed her by the hair. He tried to force her into the car. As she struggled with him, he dropped his gun. Fannie grabbed it and tried to shoot appellant but the gun was empty. She managed to get away and ran to a friend's house for help. Dr. Lynn Salzberger, Dallas County medical examiner, testified Barrett died as a result of six gunshots to his face. Appellant called no witnesses to testify and presented no evidence at trial. Viewed in the light most favorable to the judgment, the evidence shows appellant and Bryan broke into Barrett and Fannie's apartment. They took possession of Fannie's purse and a cigar box containing money, watches, and rings. Appellant walked out of the living room, followed by Barrett. Minutes later, several gunshots were fired. Appellant ran out of the house. Barrett died from six gunshots to the face. From these facts, we conclude a rational jury could infer appellant, acting as a principal or as a party, intentionally caused Barrett's death in the course of committing or attempting to commit robbery. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction for capital murder either as a principal or as a party. Furthermore, giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing the evidence in this case, that the State's evidence was so uncertain, improbable, or unbelievable that it would be clearly unjust to allow the verdict to stand. Nor can we conclude the verdict is against the great weight of the evidence so as to be clearly wrong and unjust. Therefore, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's first, second, third, and fourth points of error. Jury Charge In his final two points of error, appellant seeks reversal because of purported errors in the jury charge. In his fifth point of error, appellant contends the trial judge commented on the weight of the evidence by instructing the jury that "intent may be inferred from acts done, words spoken, or both." In his sixth point of error, appellant contends the trial judge erred in failing to instruct the jury on the "culpable mental state for the underlying felony of robbery." We disagree with both contentions. In reviewing a claim of jury charge error, we first decide whether error exists in the jury charge. If it exists, we then determine whether the error caused the defendant to suffer sufficient harm that it requires reversal. See Hutch v. State, 922 S.W.2d 166, 170-71 (Tex.Crim.App. 1996). If, as in this case, no objection is made at trial to the charge, the defendant can obtain reversal only if the error caused egregious harm. See Almanza v State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g). "Egregious harm is a difficult standard to prove and such a determination must be done on a case-by-case basis." Hutch, 922 S.W.2d at 171. When conducting a harm analysis, we may consider (i) the charge itself; ii) the state of the evidence including contested issues and the weight of the probative evidence; iii) arguments of counsel; and, iv) any other relevant information revealed by the record of the trial as a whole. Bailey v. State, 867 S.W.2d 42, 43 (Tex.Crim.App. 1993). In his fifth point, appellant contends the trial judge commented on the weight of the evidence by instructing the jury: "Intent or knowledge may be inferred from acts done, words spoken, or both." This Court has previously addressed whether such an instruction constitutes a comment on the weight of the evidence. See Brown v. State, 92 S.W.3d 655, 665 (Tex.App.-Dallas 2002, pet. granted). In that case, Brown complained the trial judge "commented on the weight of the evidence by instructing the jury that it could infer appellant's intent from his acts done or words spoken." We concluded such an instruction did not instruct on a presumption because it did not single out one reasonable inference or inform the jury that any specific words or acts could prove appellant had the requisite intent. Brown, 92 S.W.3d at 665. We distinguished the Brown instruction from instructions given in other cases. In those cases, the instructions were error because they instructed jurors that if they found a specific set of facts, they could presume the State had met its burden of proof as to one of the elements regardless of the rest of the evidence. Brown, 92 S.W.3d at 665 (comparing Browning v.State, 720 S.W.2d 504, 507-08 (Tex.Crim.App. 1986) and Mercado v. State, 718 S.W.2d 291, 293 (Tex.Crim.App. 1986)). In this case, as in the Brown case, the instruction does not single out a reasonable inference or inform the jury of any specific words or acts that could prove appellant had the requisite intent. Brown, 92 S.W.3d at 665. We therefore conclude the instruction did not constitute a comment on the weight of the evidence, and the trial judge did not err in giving the instruction. See Brown, 92 S.W.3d at 665. Even assuming the instruction were error, we would nevertheless conclude appellant did not suffer egregious harm. As noted above, the instruction did not inform the jury that appellant's intent could be inferred from any specific word or act. Nor did it instruct or otherwise invite the jury to focus on specific evidence. Under these circumstances, we cannot conclude the instruction deprived appellant of a valuable right, vitally affected his defensive theory, or made his conviction clearly and significantly more persuasive. We overrule appellant's fifth point of error. In his final point, appellant contends the trial judge erred in failing to instruct the jury on the "culpable mental state for the underlying felony of robbery." Under this point, appellant claims that although the instruction included in the jury charge tracked that set forth in the penal code, it limited "its application to a result of conduct offense." Appellant claims that because the judge did not instruct the jury on the appropriate mental state for robbery or attempted robbery, the jury could not have found him guilty of robbery or attempted robbery. Assuming the trial judge erred in failing to limit the definitions in the charge to the conduct element to which they apply, we conclude appellant was not egregiously harmed by the failure. We note that, in his brief, appellant fails to present any argument or analysis indicating how the jury could have been confused or mislead by the charge. Nor does he suggest how the jury could have found him guilty without first finding he had the requisite mental state. Rather, he merely states, "The error in [this] case appears to be fundamental. Without a complete instructions [sic] on what the jury was required to find in order to convict, it cannot be argued that the trial accorded Appellant due process." (Citations omitted). Appellant has failed to adequately brief this issue on appeal, and we decline to make his argument for him. See Tex.R.App.P. 38.1(h); McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App. 1997); Lagrone v. State, 942 S.W.2d 602, 614 (Tex.Crim.App. 1997); Billy v. State, 77 S.W.3d 427, 429 (Tex.App.-Dallas 2002, pet. ref'd). Furthermore, we have reviewed the charge, the state of the evidence including the contested issues, the argument of counsel, and other relevant information. See Hutch, 922 S.W.2d at 171; Ash v. State, 930 S.W.2d 192, 195 (Tex.App.-Dallas 1996, no pet.). After doing so, we cannot conclude appellant was egregiously harmed by the error. We overrule appellant's sixth point of error. We affirm the trial court's judgment.