No. 14-10-00227-CR
Opinion filed July 26, 2011. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 182nd District Court, Harris County, Texas, Trial Court Cause No. 0774496.
Panel consists of Justices FROST, JAMISON, and McCALLY.
KEM THOMPSON FROST, Justice.
Appellant Javier Solis, Jr., appeals his conviction for capital murder, challenging the sufficiency of the evidence and asserting he was denied effective assistance of counsel at trial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On Christmas Day in 1997, officers arrived at a private residence to investigate calls for a burglary in progress in which shots had been fired. At the scene, one officer observed the complainant, who had suffered a single gunshot wound. Paramedics already were on the scene, but were unsuccessful in their attempts to resuscitate the complainant, and he died at the scene. Investigating officers learned that two witnesses, the complainant's brothers Tom and Billy, had arrived at the complainant's home earlier in the evening and observed an unfamiliar vehicle parked with the motor running in front of the home. The complainant and his family were not home at the time. The brothers observed a black or Hispanic male in the driver's seat. The brothers approached the vehicle and asked the driver why he was there. The driver honked the horn and sped away. The brothers observed that the front door of the complainant's home had been damaged; it looked as if the bottom of the door had been kicked in. They also observed a person peering through the damaged hole in the front door. Tom saw a male intruder jump from a side window and run toward the backyard along the side of the home; Tom chased this intruder into the backyard, following roughly six to ten feet behind. Billy notified authorities of the intruders in the home and described the unfamiliar vehicle to the dispatcher. The complainant arrived a few minutes later with his wife and one of their young children. When he learned of the intruders inside his house, the complainant ran into the backyard along the other side of the home, and Billy followed roughly eight to ten feet behind him. There, Tom and Billy observed the complainant grab the intruder who had run into the backyard. Tom saw the intruder pull a gun; both Tom and Billy saw and heard the gun fire a single shot, and the complainant fell to the ground. Tom and Billy attempted to help the complainant, who was wounded. The shooter jumped over the back fence and fled. In the investigation that ensued, officers did not recover fingerprints, DNA, or the firearm. A spent bullet was found in the complainant's body during the autopsy; a forensic examiner determined it could have been fired from a .38 Special revolver or a .357 Magnum revolver. By following leads and tips, the investigators developed four persons of interest, including appellant. However, the investigators were unsuccessful in locating the appellant until eleven years later, when investigators received a tip directing them to appellant's location. Appellant was charged by indictment with the offense of capital murder, by intentionally causing the complainant's death by shooting the complainant with a firearm in the course of committing or attempting to commit a burglary. After his arrest, appellant voluntarily waived his Miranda rights and gave a recorded statement to investigators about the offense, which was entered into evidence at trial and played in open court. In the statement, appellant admits to participating in the burglary with three other men, in which all four men carried firearms. Appellant denied shooting the complainant and claimed to have learned about the complainant's death on the news following the incident. After giving this recorded statement, appellant led investigators to a wooded area along a bayou where he claimed to have disassembled and discarded the firearm that he carried. Appellant pleaded "not guilty" to the charged offense and waived his right to a trial by jury. At a bench trial, Abel Villafuerte, Jr., testified that he, appellant, and two other men went to the complainant's home on the evening in question. One of the men remained in the vehicle, while the three others broke into the home. The men took items from the home and panicked when they heard people arriving at the residence. Villafuerte testified that the men exited the home by jumping through a bedroom window; appellant exited first and ran in one direction, while Villafuerte and another man exited and ran in the other direction. As Villafuerte jumped through the window, he heard a single gunshot. Three of the men met up at a nearby convenience store and later parted ways. Villafuerte was arrested several months later. In a plea packet which was admitted into evidence, Villafuerte pleaded "guilty" to a charge of organized crime by committing the offense of burglary of a habitation with appellant and two others. Villafuerte also testified about a written statement that he gave to officers following his arrest, in which he stated that appellant had admitted shooting the complainant. Marisol Silva testified that she and Villafuerte went to appellant's home on the day in question, and the two men departed along with two others. She testified that appellant returned to the home several hours later without the others. According to Silva, appellant told her three of them had broken into a home and escaped through a window; appellant claimed to have fired the shot when the homeowner caught him. Silva testified that Villafuerte then called appellant's home and the men arranged to meet at a convenience store. Silva and appellant's wife at the time, Yasmin, accompanied appellant to the convenience store to pick up Villafuerte and Allen Pickney. After picking the men up, appellant talked about how he shot the homeowner. Eventually, they returned to appellant's home, and a fourth man, Aguedo Alfaro, arrived; the four men discussed what had happened. Appellant indicated that he planned to leave town. Silva testified that Villafuerte was arrested several months later. Appellant's ex-wife Yasmin Maldonado similarly testified that appellant and three others left appellant's home on Christmas Day. According to Maldonado, appellant had returned to the home alone following the incident and claimed that the men had broken into a home and jumped through a window to escape when the homeowner arrived. Maldonado testified that appellant believed that a law enforcement officer had grabbed him and that he tried to free himself, but had a gun in his hand and shot the person. Upon appellant's return to his home, Maldonado saw a firearm and recognized it as a .38 that belonged to appellant's father. Maldonado testified that appellant disassembled the firearm with a hammer and that she accompanied him to discard the pieces near a river. At trial, appellant testified that he exited the home through the front door and that he did not shoot the complainant. According to appellant, he carried a 9mm firearm during the burglary, and he discarded the firearm because he was then on probation for an unrelated previous burglary and worried about the possibility of more charges against him. The trial judge found appellant guilty as charged and sentenced appellant to a life of confinement. ISSUES AND ANALYSIS
Is the evidence sufficient to support appellant's conviction?
In his first issue, appellant challenges the sufficiency of the evidence, claiming that there is no independent physical evidence that appellant committed the charged offense. In evaluating a party's challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State's evidence or believe that appellant's evidence outweighs the State's evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). A person commits the offense of capital murder if that person intentionally or knowingly commits murder in the course of committing or attempting to commit burglary. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West 2011). A person commits the offense of burglary when that person enters a habitation and commits or attempts to commit a theft. See TEX. PENAL CODE ANN. § 30.02(a)(3) (West 2011). Appellant admitted at trial, and does not dispute on appeal, that he committed the offense of burglary by entering the complainant's home and attempting to take belongings from the home. Villafuerte testified that he, appellant, and another man broke into the complainant's home to take items while a fourth man waited outside. According to Villafuerte, the three men inside the home panicked when they heard people arriving at the home and so left through a bedroom window. Tom, the complainant's brother, testified that he saw one intruder exit the home from a side window and run to the backyard. This evidence is consistent with Villafuerte's testimony that appellant exited the home first and ran in one direction, which is the direction of the backyard, while Villafuerte and Pickney exited the home and ran in the opposite direction. Tom and Billy both saw the complainant grab the intruder in the backyard; both Tom and Billy saw the gun fire and heard a single gunshot, which is also consistent with Villafuerte's testimony of hearing a single gunshot as he climbed from the side window immediately after Pickney. Tom and Billy observed the intruder jump over bushes and a fence to flee from the backyard. According to appellant, he jumped over a fence before exiting the premises. Although appellant claimed to have exited through the front door when no one was looking, the record reflects that appellant would not have encountered a fence to flee the scene through the front door, as appellant claimed. When Maldonado saw appellant after the incident, she claimed to have recognized the firearm that appellant carried as a .38 belonging to appellant's father. According to the record, the bullet recovered from the complainant's body appeared to have been fired from a .38 Special revolver or a .357 Magnum revolver. This evidence supports an inference that appellant used the .38 firearm to shoot the complainant. See Gardner v. State, 306 S.W.3d 274, 286 n. 7 (Tex. Crim. App. 2009) (considering evidence that an accused always kept a .44 fully loaded and other evidence that the complainant was shot with a handgun such as a .44 magnum as supporting reasonable inference that the accused used the weapon in committing capital murder). Although appellant testified that he carried a 9mm, the trial judge, as factfinder, was free to believe or disbelieve this testimony. See Cain v. State, 958 S.W.2d 404, 407 n. 5 (Tex. Crim. App. 1997). Maldonado and appellant both testified that appellant dismantled the firearm and discarded the pieces. Appellant directed investigators to the areas where he claimed to have discarded the firearm; however, Maldonado did not recognize photographs of that area. A factfinder reasonably could have inferred that appellant was the shooter because he disposed of the firearm, which otherwise could have shown that the bullet recovered from the complainant's body was not fired from the weapon carried by appellant. Likewise, appellant testified, and Maldonado confirmed, that appellant fled to Mexico following the offense and evaded authorities for nearly a decade after the offense. A factfinder may draw an inference of guilt from the circumstance of flight. Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007). Appellant contends there is no evidence that he was the person who shot the complainant. The State may prove the defendant's identity and criminal culpability by direct or circumstantial evidence, coupled with all reasonable inferences drawn thereon. Gardner, 306 S.W.3d at 285. Silva testified that appellant arrived at his home after the burglary and told her that he and the other men had broken into a home, he had escaped through a window, and that a man caught him and would not let him go, so he shot the man and fled. Maldonado similarly testified that appellant recounted to her how the men had broken into the home and that when the homeowner arrived, appellant escaped through a window, was caught by a person, and shot the person while trying to free himself. Appellant's two extrajudicial confessions to Silva and Maldonado, in which appellant acknowledged that he shot the homeowner after burglarizing the home, amounts to direct evidence. See Emery v. State, 881 S.W.2d 702, 705 n. 4 (Tex. Crim. App. 1994) (involving a defendant who confessed to his wife on the night of the offense and similarly confessed to two others). Although appellant never told his confessors the name of the homeowner, he confessed to shooting the complainant after the burglary. See id. An extrajudicial confession is sufficient to establish the identity of the perpetrator of a crime. Id. at 706. Details of the offense, as Silva and Maldonado testified to learning from appellant, such as the fact that appellant escaped the home through a window and was caught by the person that he shot, are consistent with Tom's and Billy's accounts of events. See id. Appellant also asserts that, absent his extrajudicial confessions to Silva and Maldonado, the evidence is insufficient and that the extrajudicial confessions must be corroborated by independent evidence tending to establish the corpus delecti. In a capital murder context, as relevant in this case, an extrajudicial confession, alone, is not by itself sufficient to support a conviction and must be corroborated by independent evidence as to both the murder and the underlying felony that elevated the murder to a capital offense. Id. at 705. In other words, the corpus delecti of both the murder and underlying offense must be shown by evidence independent of the confession. Id. But the independent evidence need not connect an accused to the crime; the evidence need only show that a crime was committed. Id. Such evidence, alone, need not be sufficient to prove the offense; the evidence need only be "some evidence which rendered the corpus delecti more probable than it would be without the evidence." Id. In addition to Silva's and Maldonado's testimony about appellant's acknowledgment that he shot a person after burglarizing the home, the State offered independent evidence of the corpus delecti of the murder by proving the identity of the complainant and that the complainant's death was caused by a single gunshot wound. See id. Moreover, it is undisputed that appellant did not have consent to enter the complainant's home and take belongings; appellant testified that he broke into the home and attempted to take video games and other items. Therefore, appellant's confessions to Silva and Maldonado, together with the independent evidence discussed above, support the finding that the complainant's murder was committed in the course of a burglary. See id. Appellant contends that an accomplice witness's testimony must be corroborated by other evidence, referring in his appellate brief to extrajudicial statements that were "testified to by witnesses who were aware of the alleged crime and allegedly assisted [him] in avoiding apprehension." To present an issue for appellate review, "the brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i). Appellant has not identified which of the witnesses he claims are accomplices who helped him avoid apprehension nor has appellant provided citations to the appellate record in support of his contentions. Therefore, appellant has waived this argument. See id. In resolving the conflicting testimony offered by appellant and Villafuerte, a rational factfinder reasonably could have found Villafuerte's testimony more credible, especially in light of testimony from Maldonado and Silva, both of whom offered details of the incident that were consistent with Tom's and Billy's accounts. See Emery, 881 S.W.2d at 706 (providing that testimony from witnesses to whom an accused confessed to stabbing a complainant offered details consistent with eyewitness accounts). The weight to be given contradictory testimonial evidence is within the sole province of the factfinder. See Cain, 958 S.W.2d at 408. A factfinder may judge the credibility of the witnesses and may choose to believe all, some, or none of the testimony presented. See id. at 407 n. 5. When considering the testimony of the various witnesses (the complainant's brothers, the investigating officers, Villafuerte, Silva, and Maldonado) which can be taken together to glean a clearer picture of the events in question, any discrepancies among the various accounts are dwarfed by the overall picture. See Neal v. State, 256 S.W.3d 264, 277 (Tex. Crim. App. 2008). Taken as a whole, the evidence is sufficient to establish beyond a reasonable doubt that appellant was the person who shot the complainant. See Gardner, 306 S.W.3d at 286 (concluding evidence was sufficient to support conviction for capital murder); Emery, 881 S.W.2d at 706 (evidence was sufficient to support conviction for capital murder based, in part, on extrajudicial confession to an accused's wife and two others). We overrule appellant's first issue. Did appellant receive ineffective assistance of counsel?
In his second issue, appellant asserts that he received ineffective assistance of counsel at trial because his trial counsel should have objected to the State's use of "alleged plea agreements of two of appellant's co-defendants who stipulated that [a]ppellant was with them and participated with them when the crime was committed." Appellant claims that he was denied the opportunity to cross-examine those witnesses. The record reflects that Villafuerte's plea agreement was entered into evidence. This document reflects a stipulation that Villafuerte "committed this offense [of engaging in organized criminal activity] with [appellant], Aguedo Alfaro, and Allen Pickney." Appellant was afforded an opportunity to cross-examine, and, in fact, did cross-examine, Villafuerte. The record reflects that the State sought to offer plea agreements from Alfaro and Pickney into evidence. But, contrary to appellant's assertion, trial counsel objected to the same stipulation included in these two plea agreements, asserting that he would not have an opportunity to cross-examine Alfaro or Pickney, neither of whom testified at trial. The trial court sustained appellant's objection and offered an opportunity for the prosecutor to redact. As redacted, the plea agreements of Alfaro and Pickney were admitted into evidence without objection. Therefore, appellant's assertion that he was denied an opportunity to cross-examine any co-defendants as to their stipulations of appellant's involvement is unsupported by the record. A reviewing court cannot accept as fact allegations or assertions that are not supported by the record. Beck v. State, 573 S.W.2d 786, 788 (Tex. Crim. App. 1978). Appellant's bare assertions to the contrary, unsupported by the record, present nothing for review. See Janecka v. State, 937 S.W.2d 456, 476 (Tex. Crim. App. 1996); Wyatt v. State, 836 S.W.2d 334, 335 (Tex. App.-Houston [14th Dist.] 1992, pet. ref'd). To defeat the presumption of reasonably effective assistance of counsel, any allegation of ineffectiveness must be firmly founded in the record and affirmatively demonstrate the alleged ineffectiveness. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Appellant has presented no other contentions regarding appellant's trial counsel's conduct. Finding no merit in his ineffective-assistance claims, we overrule appellant's second issue. The trial court's judgment is affirmed.