No. 05-08-00481-CR
Opinion issued May 12, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 3 Dallas County, Texas, Trial Court Cause No. F04-32684-TPJ.
Before Justices WRIGHT, O'NEILL, and LANG. Opinion By Justice WRIGHT.
CAROLYN WRIGHT, Justice.
A jury convicted Marco Vinicio Soto of aggravated assault and assessed punishment at two years in prison. In four issues, appellant complains about corroboration of certain accomplice witness testimony and the factual sufficiency of the evidence to support his conviction. We overrule appellant's issues and affirm the trial court's judgment.
Background
Maria Fernandez was shot in her front yard in a drive-by shooting. Fernandez testified that, on the day she was shot, she was having a graduation celebration in her front yard for her youngest son, Adam. The party began in the late evening and continued into the morning hours. About 2:45 a.m., Fernandez was inside washing dishes when she heard gunshots. Fernandez and her husband went "outside and we grabbed [Adam] and ran back, but we didn't make it." Fernandez felt "real hot" in the front and fell to the ground. She was taken by ambulance to the hospital where she had surgery for an abdominal gunshot wound. She remained hospitalized for "about four days." Jerry Parson, Fernandez's next-door neighbor testified he was awakened by the gunfire, hearing five or six shots. Parsons looked outside and saw a blue pickup with "a couple of people in the back. Might have been two or three. I couldn't tell you what they looked like. But one was standing up with a gun in his hand, just bam-bam-bam-bam as they was driving down the road." Parson could tell the people in the back of the truck were male and "they [were] kind of stocky, short, if they were standing in the back of the truck. They might have been on their knees." Alex Esquivel testified that, although he did not know Adam, he went to the graduation party with some friends, Gustavo, Joe, and, Max. Esquivel was standing near the front sidewalk, "hanging out" with Joe and Gustavo when "eight cars pulled up, . . . [and] confronted me and started asking me questions." Esquivel knew two or three of the people from the neighborhood-"Jimmy. Dude named J.J. Dude named Javier." The young men asked Esquivel about appellant's younger brother. When Esquivel told the young men from the cars that he did not know where the younger Soto was, they became aggressive, and "hit [Esquivel] from behind with a bottle" and "jumped" him. As Esquivel and his friends began to defend themselves, about 15 people became involved in the fight. The fight lasted about five minutes, and then Esquivel left the party. He went to a nearby recreation center and met up with Joe to get a ride. In the meantime, Joe called Donovan Whitehorse. Whitehorse arrived in his blue pickup truck with appellant and Tracy Wold. According to Esquivel, Whitehorse was of "medium build." When Whitehorse asked Esquivel about the fight, he told Whitehorse he had been "jumped." A short time later, Esquivel left the recreation center in Whitehorse's truck with Whitehorse, appellant, and Wold. Whitehorse drove to Max's house in Grand Prairie where they met up with Joe, Max-"everyone was there." Whitehorse, appellant, and Wold left in the truck, and Esquivel left in his car. Although he was not "100 percent sure," Esquivel believed Whitehorse was driving the truck when they left. Wold testified he was charged with two counts of aggravated assault for the drive-by shooting and that he had pleaded guilty. Although he had not reached an agreement about punishment with the State, Wold agreed to testify against appellant and let the judge consider his cooperation. According to Wold, he, Whitehorse and appellant had been at another party drinking beer and then left in Whitehorse's truck to go "hang out." Whitehorse had a handgun on the console of the truck. Wold "grabbed it," "put it in [his] pants," and then got into the back of the truck. About that time, Whitehorse received a telephone call and they went to pick up Esquivel. When they saw Esquivel, he had "blood all over." Wold, Whitehorse, and appellant gave Esquivel a ride to his car and then picked up Esquivel's brother, Reuban. Whitehorse drove the truck to the Fernandez home to "start some trouble." Wold and Reuban were in the back of the truck, and appellant was in the passenger seat. Whitehorse parked the truck, and the four men walked towards the Fernandez house. As they did so, people at the party began throwing bottles at them. When one of the bottles hit Wold in the arm, he "pulled out the gun, [and] started shooting." He fired the gun two or three times before the gun jammed. Wold and appellant tried to unjam the gun, but "took off" when they were unsuccessful. Wold and appellant then jumped into the back of Whitehorse's truck, and Whitehorse drove away. Wold and appellant were able to fix the gun and told Whitehorse to go back to the Fernandez house. Whitehorse made a U-turn, stopped, and let Reuban out because "he didn't want no part." They continued toward the Fernandez house. As they drove by the house, appellant "started shooting." According to Wold, he and appellant were laying down in the back of the truck, and appellant reached up over the bed and fired the gun. They then drove to a friend's house down the street and "split up." The last time Wold saw the gun, appellant had it. Wold then went back to his apartment with a friend, Anna Palacios. On cross-examination, Wold admitted he sent appellant a letter in which he stated that he gave the gun to Whitehorse after it jammed. He explained that he and appellant were "trying to lie about it." Wold thought he and appellant could blame the shooting on Whitehorse because he was already in federal custody. Eusebio Jesse Luna testified he went to another party before going to the Fernandez party. When he arrived, there were about twenty people there and "a lot of commotion." There had been a fight about "an hour or so, two hours or so" before Luna arrived. Luna was standing in the front yard when he saw Whitehorse driving a truck slowly down the street. Someone in the truck yelled, "`What's up now, South Side,' something like that. Some profanity." Luna saw appellant in the passenger side of the truck. Whitehorse parked the truck a "couple of houses" down and some people got out of the truck. Anticipating a fight, Luna and some of the other party goers began throwing beer bottles at them. The people from the truck, one of whom Luna recognized as Wold, kept coming forward. Luna then saw a gun in Wold's hand. Luna saw Wold fire the gun once, and then heard a second shot as he crouched behind a car. When Luna got back up, he saw the truck driving away. The truck stopped near where it had parked before and then came back. Luna remembered seeing someone with a "[b]ig build. All black on." That person fired the gun numerous times, "at least a full clip." When the shooting stopped, Luna saw that Adam's parents had been shot. According to Luna, the second shooter was not Wold because he was "a more bulkier guy" than Wold. Luna also did not think the second shooter was Whitehorse because the shooter had a different body type than Whitehorse. Detective Serena Henderson testified she arrived at the scene of the shooting a minute or so after she received the dispatch. She and Officer Jerry Patterson gave medical attention to Adam's parents. After they had been taken to the hospital by ambulance, Henderson helped locate shell casings. The location of the casings she found indicated the shooter was moving down the street as the gun was fired. Discussion
In his first and third issues, appellant contends the State failed to present sufficient non-accomplice testimony to corroborate Wold's testimony that appellant shot Fernandez. After reviewing the above evidence, we conclude a rational jury could find the non-accomplice evidence tends to connect appellant with the aggravated assault. The accomplice-witness rule provides that a conviction cannot stand on accomplice testimony unless it is corroborated by other evidence tending to connect the defendant with the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005). In conducting our review, we eliminate all of the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that could be viewed by a rational juror as tending to connect the defendant to the commission of the offense. See Simmons v. State, No. 0791-08, 2009 WL 1175047, at *3-4 (Tex.Crim.App. Apr. 29, 2009); Castillo v. State, 221 S.W.3d 689, 691 (Tex.Crim.App. 2007). The corroborating evidence need not be sufficient by itself to establish guilt; there simply needs to be "other" evidence "tending to connect" the defendant to the offense alleged in the indictment. Castillo, 221 S.W.3d at 691. Although presence alone is insufficient to corroborate an accomplice's testimony, presence coupled with other suspicious circumstances may constitute sufficient corroboration. Davis v. State, 68 S.W.3d 273, 281-82 (Tex.App.-Dallas 2002, pet. ref'd) (citing Trevino v. State, 991 S.W.2d 849, 851 (Tex.Crim.App. 1999)). Here, the corroborating evidence shows the following. Esquivel testified he was "jumped" by people at the party who were looking for appellant's younger brother. Esquivel called Whitehorse for a ride. Whitehorse arrived at the recreation center with appellant and Wold. Esquivel told Whitehorse, appellant, and Wold about the fight showing appellant had a motive to participate in the offense. Additionally, Parsons testified the person in the back of the truck shooting was of medium or stocky build. Luna recognized appellant as a passenger in the truck when it first arrived and recognized Wold as the first shooter. He also knew there were two shooters. Luna testified that he knew from the second shooter's build it was not either Whitehorse or Wold. Having reviewed the non-accomplice testimony regarding circumstances before and during the shooting, we conclude a rational juror could view the above evidence as tending to connect appellant with the aggravated assault of Fernandez. We overrule appellant's first and third issues. In his second and fourth issues, appellant contends the evidence is factually insufficient to prove his guilt as the primary actor or as a party. We begin with appellant's guilt as the primary actor. When reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Grotti v. State, 273 S.W.3d 273, 283 (Tex.Crim.App. 2008). Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust; and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Id. "`[A]n appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the . . . evidence contradicts the jury's verdict before it is justified in exercising its appellate fact jurisdiction to order a new trial.'" Id. (quoting Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006)). A reversal for factual insufficiency cannot occur when "the greater weight and preponderance of the evidence actually favors conviction." Id. (quoting Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007)). Although an appellate court has the ability to second-guess the jury to a limited degree, the factual-sufficiency review should still be deferential, with a high level of skepticism about the jury's verdict required before a reversal can occur. Id. A person commits aggravated assault if he commits assault and either (1) causes serious bodily injury to another, or (2) uses or exhibits a deadly weapon during the commission of the assault. Tex. Penal Code Ann. § 22.02(a) (Vernon Supp. 2008); Ferrel v. State, 55 S.W.3d 586, 589 (Tex.Crim.App. 2001). "Serious bodily injury" is "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Tex. Penal Code Ann. § 1.07(a)(46) (Vernon Supp. 2008). A deadly weapon is "(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal Code Ann. § 1.07(a)(17) (Vernon Supp. 2008). Appellant contends the evidence he was the shooter is so weak that the verdict is manifestly unjust. In particular, he argues we must reverse his conviction because no one, other than Wold, identified him as the shooter and there is no physical evidence demonstrating he shot Fernandez. Appellant's arguments under this issue are entirely predicated on an evaluation of the credibility of the witnesses and the determination of the weight to be given to each witness's testimony. The jury, as the sole judge of the witnesses' credibility and the weight to be given the testimony, could choose which testimony to believe and which to disbelieve. The jury chose to believe Wold's testimony that appellant shot Fernandez. Giving the jury's determinations of credibility and weight due deference, we conclude that the record does not clearly reveal that the evidence was so weak as to render the jury's determination clearly wrong and manifestly unjust, nor that the jury's determination was so contrary to the overwhelming weight of the evidence so as to be clearly wrong and unjust. We therefore conclude the evidence was factually sufficient to support his conviction as the principal actor and overrule his second issue. Having reached this conclusion, we need not address appellant's fourth issue regarding the sufficiency of the evidence to support his guilt as a party. See Tex. R. App. P. 47.1 Accordingly, we affirm the trial court's judgment.