Opinion
No. 05-07-01329-CR
Opinion issued March 27, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause No. F05-53857-X.
Before Justices FRANCIS, LANG-MIERS, and MAZZANT.
MEMORANDUM OPINION
A jury convicted Genaro Quirino Trevino of murder and assessed punishment at life in prison. In seven issues, appellant complains about corroboration of an accomplice-witness's testimony, legal and factual sufficiency of the evidence to support his conviction, and charge error. We affirm. In the early morning hours of June 18, 2005, Christina Rodriguez was fatally shot in her car after leaving a Dallas nightclub. Passengers in the car — Christina's cousin Angela Rodriguez, Jose Contreras, Juan Carlos Contrerras, and Brenda Perez — testified to essentially the same facts leading up to the shooting. The group went to the club to celebrate a birthday. On the way to the club, Christina called appellant to meet her. When they arrived at the club, appellant and Arnufo Baesa were waiting outside. Christina's friends did not know the two men. Once inside, Christina, appellant, and Baesa sat at a table alone before joining the rest of the group. Baesa was quiet and kept to himself. Christina's friends said that, throughout the night, appellant was looking at Christina "weird," like he wanted something from her romantically. None of them believed that she was involved with appellant because she had a boyfriend. After they had been at the club for a couple of hours, Christina danced with appellant. Her friends testified that while on the dance floor, appellant was trying to "push up on" and kiss Christina, but she pushed him away. Appellant looked "kind of upset." Christina returned to the table, and while appellant was away, said she wanted to leave because appellant was bothering her. Although her friends wanted to leave before appellant returned, Christina did not want to be rude. After appellant returned to the table, Christina said she was leaving. Before she got to the exit, appellant intercepted her and Christina stayed behind to talk to him, but no one knew what was said. Outside, Christina chatted with the bouncer while appellant stared at her from inside his Ford Avalanche and looked mad. When Christina pulled out of the club's parking lot, appellant was still paying the valet. After going only a short way, Christina pulled over so that she could get her purse from her car trunk. Christina's friends saw appellant was behind them and told her to keep going. She looked in her rearview mirror and said, "That's him." Appellant pulled his car up beside Christina's car; the group heard a noise, the driver's side window shattered, and appellant drove away. The group thought appellant had thrown a bottle at the car, but then saw Christina had been shot in the head. They heard more shots fired as appellant drove down the street. Fearful appellant would return to shoot them, the group got out of the car, hid in some trees, and called the police. The police arrived within minutes and found Christina's body slumped over in the front seat and her friends huddled together crying. Christina's car had a bullet hole in the driver's window and the passenger window was "blown out." Police did not recover the bullet that hit Christina and exited the passenger window; however, they found a live 9 mm bullet on the driver's side of the road about 100 feet from Christina's vehicle. The police separated Christina's friends, drove them to the police station, and interviewed them. No one in Christina's car saw who fired the gun, but they told police what happened, gave them appellant's nickname, "GT," and a description of his vehicle as well as a description of Baesa. Based on the witnesses' statements and the crime scene investigation, police obtained a warrant for appellant's arrest several hours later. The police went to appellant's neighborhood and ultimately found appellant's vehicle pulled over. Appellant, who was in the driver's seat, was talking to a man, later identified as Christopher Maiden; Baesa was in the passenger seat. As the police began to approach, Maiden walked off and appeared to have something under his shirt. Police arrested appellant and took Baesa in for questioning. Over the course of several hours, Baesa told the police appellant had fired the shot that killed Christina. Baesa testified he had met Christina a week earlier when he delivered flowers from appellant to her at work. On the night of the shooting, Baesa said he and appellant were both drunk. Everything seemed normal at the club, and appellant and Christina were "affectionate." As they were leaving the club, Christina told Baesa she was going to drive appellant's truck, so Baesa thought Christina was coming with them. Instead, Christina left with her friends, and Baesa said appellant was in a hurry to have the valet paid and angrily asked, "Where is my bitch at?" Baesa pointed to Christina's car as it was leaving the club. Appellant followed and pulled up next to Christina's car. Baesa thought Christina was going to get in their vehicle and was looking out the window at her. When he turned back, appellant had reached across Baesa's chest with a gun and had one eye closed, as if he were aiming. Baesa asked what appellant was doing, and appellant fired the weapon. As he drove off, appellant said "fucking bitch," turned up the radio, and began shooting out the driver's side window. Over the next couple of hours, appellant and Baesa drove around trying to find more bullets. At one stop, Baesa said he told some people that appellant "shot at his girl." Appellant replied, "Bitch, that nigga — that ain't my girl. Connie's my girl." When they went back to appellant's house, appellant woke his mother and had her make them breakfast. When they awakened later that morning, appellant asked Baesa what they did last night, and Baesa signaled for him to be quiet. Appellant laughed. Over the next few hours, appellant repeatedly called Christina, but did not get an answer, leading Baesa to believe appellant did not think anything "bad" had happened to her. Baesa told the police appellant gave the gun to Maiden. Baesa admitted he initially told the police appellant had taken him home after the shooting because he wanted to distance himself from the incident. Maiden, who was a reluctant witness at trial, testified appellant handed him a gun just as the police were about to arrest him and acknowledged telling the police that appellant told him to hide it. Maiden put the gun, a round, and a clip in a hall closet. Later that day, the police returned to the house and found the gun, round, and clip in a shoebox in the closet. The police also searched appellant's vehicle and found a spent 9 mm cartridge case on the driver's side floorboard. A firearms expert testified the cartridge case found in appellant's vehicle, the live round found in the street, and the cartridge found in Maiden's closet were either fired from or cycled through the gun appellant gave to Maiden. Finally, the clothing worn by appellant and Baesa was tested for gunshot residue, and small quantities of GSR particles were detected. Appellant defended the charge by presenting evidence from two Dallas County jail inmates that Baesa shot Christina. Rudolph Mora, who was serving a two-year sentence for family violence assault and had previous convictions for aggravated assault and possession of a controlled substance, testified that he shared a cell with Baesa for three days in November 2006. Mora said Baesa admitting firing the shot that killed Christina. According to Mora, Baesa said his father made a deal with the State to get him off. When Mora asked Baesa how he could let someone "take the fall" for what he did, Baesa said he was not going to show up for court and then the State would not have a witness. On cross-examination, Mora acknowledged he was friends with appellant and talked with appellant regularly. Mora also agreed that when someone is first incarcerated, like Baesa, he is often vulnerable and takes protection from inmates who are more experienced and "bigger than them," like him. He also acknowledged that inmates try to make themselves seem tougher than they are so other inmates will leave them alone. Juan Rodriguez, who was in jail on a probation violation for evading arrest and had a prior conviction for attempted murder, said he overheard Mora and Baesa talking. Rodriguez said Baesa told Mora appellant was not guilty and had no part in the shooting. Like Mora, Rodriguez acknowledged that people in jail make themselves "seem meaner"than they actually are. Finally, appellant read previous testimony given by Isidro Espino, who the defense could not locate for this trial. Espino, who lived two doors down from appellant, said he saw appellant and Baesa at about 2 a.m. on the morning of the shooting. Espino said Baesa was holding a gun and said "they" had just shot some cars. He later testified Baesa said "he" shot up a car. In rebuttal, Baesa testified that when he was jailed in November 2006, Mora and other inmates approached him, asked if he knew appellant, told him "you know [appellant] gots [sic] a lot of power," and threatened him and his family if Baesa did not "sign a paper" saying he was not going to show up for court. Contrary to a report from one of the nightclub's employees, Baesa denied getting anything from the backseat of the vehicle before he and appellant left the club. In his first issue, appellant contends the State failed to present sufficient non-accomplice testimony to corroborate the testimony of Baesa, who he asserts was an accomplice as a matter of law. Given the conflicting evidence in the record, we question whether Baesa was an accomplice as a matter of law. See Druery v. State, 225 S.W.3d 491, 498 (Tex.Crim.App. 2007) (explaining that to be considered accomplice, witness's participation with defendant must involve affirmative act promoting commission of offense, and trial judge "has no duty to instruct the jury that a witness is an accomplice witness as a matter of law unless there exists no doubt that the witness is an accomplice"). Nevertheless, we assume for purposes of this issue that he was and that a hypothetically correct charge would have included an accomplice-witness instruction. 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 making 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 tends to connect the accused with the commission of the offense." 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. Id. Here, the corroborating evidence shows the following. Christina's friends testified appellant appeared angry at the club when Christina rebuffed his advances and also seemed angry outside the club as they were leaving. Two witnesses testified they saw appellant get into the driver's seat of the Avalanche. Moments later, when the Avalanche pulled up next to them, a shot was fired from the vehicle, and the vehicle drove away as more shots were fired. At the crime scene, the police found a live bullet on the driver's side of the road about 100 feet from Christina's car. The next morning, as he was about to be arrested, appellant gave a gun to his neighbor and told him to hide it. Police recovered the gun, and the live bullet found on the driver's side of the road matched the gun. Police recovered a spent cartridge case on the driver's side floorboard of appellant's vehicle, supporting a conclusion that the driver of the vehicle, not the passenger, fired the gun. The cartridge case also matched the gun. Finally, Christina's friends identified appellant as a suspect, gave the police a description of him and his vehicle, and a possible location of where he lived. Having reviewed the non-accomplice testimony regarding circumstances before, during, and after the shooting and the physical evidence, we conclude the non-accomplice evidence tends to connect appellant with Christina's murder. We overrule the first issue. In his second through fourth issues, appellant argues the evidence is factually insufficient to prove his guilt as the primary actor and also the evidence is legally and factually insufficient to prove his guilt as a party. We begin with appellant's guilt as the primary actor. In 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 murder if the person intentionally or knowingly causes an individual's death or if the person intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes an individual's death. Tex. Penal Code Ann. § 19.02(b)(1), (2) (Vernon 2003). Appellant argues the evidence he was the shooter is so weak that the verdict is manifestly unjust. In particular, he generally argues no one saw who fired the shot; no evidence showed any "discord" between him and Christina at the nightclub; evidence was presented that, shortly after the shooting, Baesa produced the gun to a friend and laughed about how he had fun shooting at cars; Baesa lied to the police when he said appellant took him straight home after the shooting; and the gunshot residue evidence on Baesa's shirt suggests he was the shooter. Additionally, appellant discounts evidence he gave the gun to a friend to hide, arguing he previously had "several brushes with the law" and it was just as likely he would not want a loaded gun on him when he was about to be arrested. While appellant is correct that no one saw who fired the shot from the Avalanche, he is incorrect that no evidence of "discord" at the nightclub was presented to the jury. Christina's friends testified appellant was trying to hug and kiss her on the dance floor and she pushed him away. In fact, Christina was so uncomfortable with the encounter she told her friends she wanted to leave and did not want appellant to come along. Once outside the club, appellant looked angry as he watched Christina from the driver's door of his Avalanche. Minutes later, appellant pulled up beside Christina's car, and Baesa testified appellant reached over him, aimed, and fired the gun. Later that night, during one of the stops to look for bullets, Baesa told a friend appellant had "shot at his girl." Appellant did not deny the shooting, only that Christina was his "girl." The next day, as the police were closing in, appellant gave his gun to a friend to hide. Ballistics showed that a bullet, found on the driver's side of the road, and an unfired cartridge found on the driver's side floorboard of appellant's vehicle, matched appellant's gun and supported the conclusion that the driver of the vehicle was firing the gun that night. Finally, a few particles of gunshot residue were found on both men's clothing. In contrast, appellant presented the testimony of two men who were jailed with him and a third man, who considered appellant his "big brother," to cast blame on Baesa. All claimed Baesa admitted firing the gun that night, although Baesa denied the allegations and testified the jail inmates threatened him and family if he did not sign a statement refusing to testify. The jury was entitled to resolve any conflicts in the evidence and any issues with Baesa's credibility. As for appellant's argument regarding his prior "brushes with the law," no such evidence was developed at the guilt-innocence phase. After reviewing the evidence under the appropriate standard, we conclude a jury would have been rationally justified in concluding appellant, angry that Christina rejected him, shot her. We therefore conclude the evidence was factually sufficient to support his conviction as the principal actor and overrule the second issue. Having reached this conclusion, we need not address appellant's third and fourth issues regarding the sufficiency of the evidence to support his guilt as a party. In his remaining issues, appellant seeks reversal because of alleged errors in the jury charge. In his fifth and sixth issues, he argues the trial court erred by (1) instructing the jury on the law of parties and (2) failing to apply the law of parties in the application paragraph of the charge, both over his objection. In his seventh issue, he complains the charge included a reasonable doubt definition. We begin with the fifth issue, in which appellant argues a law of parties instruction was improper because the "prosecutors took the position that their evidence proved beyond a reasonable doubt that [a]ppellant acted alone. That evidence was legally sufficient to convict him." In general, an instruction on the law of parties may be given to the jury whenever there is sufficient evidence to support a jury verdict that the defendant is criminally responsible under the law of parties. Ladd v. State, 3 S.W.3d 547, 564 (Tex.Crim.App. 1999); McCuin v. State, 505 S.W.2d 827, 830 (Tex.Crim.App. 1974). Even if we assumed the evidence adduced at trial would not support a jury verdict that appellant is criminally responsible under the law of parties, "[w]here . . . the evidence clearly supports a defendant's guilt as a principal actor, any error of the trial court in charging on the law of parties is harmless." Id. (quoting Black v. State, 723 S.W.2d 674, 675 (Tex.Crim.App. 1986). In other words, as the court of criminal appeals explained, because there is no evidence tending to show appellant's guilt as a party, it is almost certain a jury would not rely upon the parties instruction in arriving at its verdict, but rather based the verdict on the evidence tending to show appellant's guilt as a principal actor. Id. As outlined previously, the evidence in this case clearly supported appellant's guilt as a principal actor; thus, we conclude any error was harmless. We overrule the fifth issue. Appellant next complains the jury charge failed to properly apply the law of parties to the facts of the case. Specifically, he argues the application paragraph failed to explicitly apply the abstract law of parties to the facts of this case. He complains the charge harmed him because "the evidence is weak on the issue of appellant's guilt as the primary actor and because there were no facts adduced proving party responsibility." When the jury charge permits the jury to convict a defendant as either the primary actor or a party and the "appellant's guilt as the primary actor is the theory best supported by the overwhelming evidence and most fervently advanced by the State in closing arguments," any error in failing to properly apply the law of parties is harmless. See Teague v. State, 864 S.W.2d 505, 517 (Tex.Crim.App. 1999). As discussed above, the State presented sufficient evidence to support appellant's conviction as the primary actor, and the overwhelming evidence best supported that theory. Although the State briefly mentioned the alternative theory of party liability in closing argument, the record establishes the State most fervently asserted appellant's guilt as the primary actor, emphasizing the evidence showed appellant "was the shooter." Under these circumstances, we conclude any error in failing to apply the law of parties to the facts was harmless. We overrule the sixth issue. In his seventh issue, appellant contends the trial court erred by instructing the jury that "[i]t is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all reasonable doubt concerning the defendant's guilt." He argues this instruction provides a definition of reasonable doubt and therefore violates the Texas Court of Criminal Appeals's holding in Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000). The court of criminal appeals has determined this issue against appellant, concluding that a trial court does not abuse its discretion in including this precise instruction in the jury charge. See Woods v. State, 152 S.W.3d 105, 115 (Tex.Crim.App. 2004). We overrule the seventh issue. We affirm the trial court's judgment.