Opinion
No. 05-08-00998-CR
Opinion filed July 29, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F06-69976-I.
Before Justices MORRIS, RICHTER, and LANG-MIERS. Opinion By Justice LANG-MIERS.
OPINION
A jury convicted appellant, Felipe Luna, of capital murder. The trial court sentenced him to confinement for life. On appeal, appellant argues that the evidence is legally and factually insufficient to support the verdict and that the trial court erred by denying his request for a jury instruction on the lesser-included offense of aggravated robbery and by denying his motion for mistrial. We affirm.
Background
The evidence showed that the deceased, Jose Renteria, and his daughter Sonia lived in Mexico where Sonia was a dentist. Although Sonia was not licensed as a dentist in Texas, she and her father would travel to Dallas for several months at a time and Sonia would offer dental services to poor and illegal immigrants out of a house in a residential neighborhood. At least one other business, a hair salon, also operated out of this house. Sonia and her father made the trip to Dallas off and on for about two years. The evidence also showed that appellant learned about the dental office through Roberto Rosales. Rosales was introduced to appellant by Maria Martinez, the aunt of appellant's ex-wife. Rosales told appellant about the dental office one night at Martinez's house. He said there would be a lot of money there, and appellant and Rosales made plans to steal the money. Sometime before the actual robbery occurred, however, Rosales backed out and agreed only to drive appellant to the house. Rosales gave appellant an automatic handgun and warned him that he only had "two good shots" because the gun would malfunction on the third shot. On the evening of August 29, 2006, around 10 p.m., Rosales drove appellant and Angel Alvarado, a homeless man that appellant recruited to help him with the robbery, to the house where Sonia operated the dental office. Jose Vargas was in the house waiting for the owner to return. Renteria was sweeping the floor. Someone knocked on the door and Renteria opened it slightly. Appellant and Alvarado pushed their way in past Renteria, yelling. Appellant jumped the counter, pulled an automatic handgun from his pants pocket, and pointed the gun at Renteria. Renteria held his arms up and asked appellant and Alvarado to calm down. About this same time, Sonia entered the doorway and Renteria told her to run. As he did so, appellant shot Renteria in the back without warning from a distance of about four or five feet. The bullet passed through Renteria's heart and lungs and lodged in his right chest. As Renteria lay dying on the floor, appellant searched all Renteria's pockets with one hand and held a gun on Vargas with the other. Vargas gave appellant $900. Alvarado chased Sonia, who was able to escape with her patient through the back door. When Alvarado returned to the room, he told appellant to kill Vargas, but, instead, Alvarado and appellant suddenly left the house. Vargas checked to see if anyone else was in the house and when he saw it was empty, he left because he was afraid appellant and Alvarado would return. Vargas came back to the house within the hour and told the police what he saw. Martinez cooperated with the police and consented to a search of her apartment. She told the police that appellant came to her apartment the night of the robbery and had Renteria's wallet, identification cards, and $800. She said appellant hid the wallet and identification cards in a hole in the wall and left with the cash. Martinez threw the wallet away after appellant left. The police found Renteria's identification cards hidden in Martinez's apartment. Martinez testified that appellant admitted to her that he had robbed the dental office and shot or killed the "old man." She said appellant was upset with Rosales because there was not a lot of money at the dental office. She also testified that the man who was shot was the one who was supposed to have "all this money," according to Rosales. Martinez testified inconsistently about whether appellant told her that he did not mean to kill Renteria. At one point, she testified that appellant told her he did not mean to kill Renteria and that Alvarado told him to do it. Later, she testified that appellant never said that. Appellant confessed to the police and led them to the gun. But he said he did not intend to kill Renteria and that Alvarado told him to shoot Renteria. A firearm expert testified that the gun was an automatic pistol that could not be fired unless the slide was pulled back and the safety was released. He determined that the gun required about 9.322 to 9.454 pounds of pressure on the trigger to fire.Legal and Factual Insufficiency of the Evidence
In his first and second issues, appellant argues that the evidence is legally and factually insufficient to support the conviction for capital murder because the evidence does not show that the murder was related to the robbery. He contends that the State failed to prove a nexus between the two crimes. He also argues that the State did not exclude every reasonable hypothesis raised by the evidence that tended to exculpate him. This former standard of review requiring reversal of circumstantial evidence cases unless the defendant's guilt is the only reasonable hypothesis was overruled by Geesa v. State, 820 S.W.2d 154, 160-61 (Tex.Crim.App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000); Manivanh v. State, No. 05-07-00921-CR, 2008 WL 4952837, at *4 (Tex.App.-Dallas Nov. 21, 2008, pet. filed). In reviewing a legal insufficiency challenge, we examine the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Laster v State, 275 S.W.3d 512, 517 (Tex.Crim.App. 2009). We do not re-weigh the evidence or substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). In reviewing a factual insufficiency challenge, we view the evidence in a neutral light, favoring neither party, to determine whether the verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Evidence supporting the conviction, although legally sufficient, is factually insufficient when it is so weak that the verdict seems clearly wrong and manifestly unjust, or when it is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts, 220 S.W.3d at 524. We must defer to the jury's determination concerning the weight to be given to contradictory testimony unless the record clearly reveals a different result is appropriate. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). To prove capital murder, the State had to prove beyond a reasonable doubt that appellant intentionally caused Renteria's death during the course of committing or attempting to commit robbery. See Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(2) (Vernon 2003 Supp. 2008). "In the course of committing" means conduct occurring in an attempt to commit, during the commission, or in the immediate flight after the attempt or commission of the offense. Robertson v. State, 871 S.W.2d 701, 705 (Tex.Crim.App. 1993). Evidence is sufficient to support a conviction for capital murder if it shows an intent to obtain or maintain control of property which was formed before or contemporaneously with the murder. Id. The specific intent to kill may be inferred from the use of a deadly weapon. Godsey v. State, 719 S.W.2d 578, 580-81 (Tex.Crim.App. 1986); Flanagan v. State, 675 S.W.2d 734, 744 (Tex.Crim.App. 1984) (op. on reh'g). A firearm is a deadly weapon per se. Tex. Penal Code Ann. § 1.07(a)(17)(A) (Vernon Supp. 2008); Ex parte Franklin, 757 S.W.2d 778, 782 (Tex.Crim.App. 1988). When a deadly weapon is used in a deadly manner, the inference of intent to kill is almost conclusive. Godsey, 719 S.W.2d at 581. The evidence showed that appellant and Rosales planned to rob Renteria and the dental office. Appellant carried a gun with him to the house and Rosales warned him that he only had "two good shots." When he entered the house, appellant almost immediately drew his weapon and pointed it at Renteria. When Renteria tried to warn his daughter, appellant shot him in the back with the handgun at close range. As Renteria lay dying on the floor, appellant rummaged his pockets and took Renteria's wallet and identification cards. We conclude that the evidence is legally sufficient to show that the murder facilitated the robbery. See Herrin v. State, 125 S.W.3d 436, 440 (Tex.Crim.App. 2002); Fierro v. State, 706 S.W.2d 310, 313 (Tex.Crim.App. 1986). In arguing that the evidence is factually insufficient to support the verdict, appellant does not cite any evidence contrary to the verdict other than appellant's statement to the police that he did not intend to kill Renteria. After a thorough and neutral review of the record, we conclude that the evidence contrary to the verdict is not so overwhelming as to render the verdict clearly wrong or manifestly unjust. We conclude that the evidence is factually sufficient to support the verdict. We resolve appellant's first and second issues against him.Lesser-Included Offense Instruction
In his third issue, appellant argues that the trial court erred by denying his request for a jury instruction on the lesser-included offense of aggravated robbery. Whether a party is entitled to an instruction on a lesser-included offense is a two-step analysis. Hall v. State, 225 S.W.3d 524, 535-36 (Tex.Crim.App. 2007). See Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006). The first step is determining whether the offense is a lesser-included offense. Tex. Code Crim. Proc. Ann. art. 37.09; Hall, 225 S.W.3d at 535-36. This is a question of law performed by comparing the elements of the offense as alleged in the indictment with the elements of the potential lesser-included offense. Tex. Code Crim. Proc. Ann. art. 37.09; Hall, 225 S.W.3d at 535-36. The second step is determining whether there is evidence that supports giving the instruction to the jury. Hall, 225 S.W.3d at 536. This step involves analyzing the evidence to determine whether it "would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense." Id. (quoting Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994)). If more than a scintilla of evidence raises the issue that the defendant was guilty only of the lesser offense, the charge must be given. Bignall, 887 S.W.2d at 23; Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992). A person commits the offense of capital murder if he intentionally or knowingly causes the death of an individual while in the course of committing or attempting to commit certain delineated felonies, including robbery. See Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(2). A person commits aggravated robbery if, while unlawfully appropriating property with the intent to deprive the owner of the property, he uses or exhibits a deadly weapon or causes serious bodily injury to another. Tex. Penal Code Ann. § 29.03(a)(1), (2) (Vernon 2003). The indictment alleged that appellant intentionally caused Renteria's death during the course of committing robbery. The State does not dispute that, in this case, aggravated robbery is a lesser-included offense of capital murder. See Tex. Penal Code Ann. §§ 19.03, 29.03(a)(1), (2). We now turn to the second step. For a rational jury to find appellant guilty only of aggravated robbery, there must be evidence that appellant did not intentionally kill Renteria during the course of robbery. See Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App. 1993). Intent to kill does not have to be formed before the trigger is pulled; it can be formed at the moment of the shooting. Id. at 674-75. Appellant points to evidence where he told Martinez and the police that he did not intend to kill Renteria and that Alvarado told him to do it. We disagree that this evidence entitled appellant to an instruction on aggravated robbery. Even if the jury believed that appellant shot Renteria only because Alvarado told him to, that would be evidence of an intentional killing. See Martinez v. State, 131 S.W.3d 22, 39 (Tex.App.-San Antonio 2003, no pet.). The undisputed evidence showed that appellant fired a deadly weapon at Renteria's vital organs from close range. We conclude that there is no evidence to raise the issue that if appellant is guilty, he is guilty only of aggravated robbery. See Jackson v. State, 992 S.W.2d 469, 475 (Tex.Crim.App. 1999); Forest v. State, 989 S.W.2d 365, 368 (Tex.Crim.App. 1999); Rousseau, 855 S.W.2d at 674-75. We resolve appellant's third issue against him.Denial of Motion for Mistrial
In his fourth issue, appellant argues that the trial court erred by denying his motion for mistrial. During examination of one of the detectives who investigated the case, the State asked whether or not Martinez's roommate implicated appellant:[PROSECUTOR]:
And Elizabeth implicated the defendant, Felipe Luna, right?
[DEFENSE COUNSEL]:
I'm going to object, Your Honor. That calls for hearsay.
. . . .
[TRIAL COURT]:
Sustained.
After the trial court sustained appellant's objection, it instructed the jury to disregard the question and denied appellant's motion for mistrial. Appellant contends it was error to deny the motion for mistrial because "prejudicial hearsay evidence was put before the jury by the State. . . ." We disagree. Although the question called for a hearsay response, it was never answered, and the presumably harmful hearsay response was never admitted into evidence. We generally presume that the jury follows the trial court's instructions to disregard a question. See Thrift v. State, 176 S.W.3d 221, 224 (Tex.Crim.App. 2005). And appellant has not cited any evidence that the jury failed to follow the court's instruction. Id. As a result, he failed to rebut the presumption and cannot show that he was harmed by the court's denial of his motion for mistrial. We resolve appellant's fourth issue against him.