Opinion
No. 13-02-165-CR
Memorandum Opinion Delivered and Filed May 12, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 275th District Court of Hidalgo County, Texas.
Before Justices YAZEZ, CASTILLO and GARZA.
MEMORANDUM OPINION
Appellant Leopoldo Rodriguez Mata ("Mata") was convicted by a jury of the offense of murder and sentenced to ninety-nine years' confinement in the Texas Department of Criminal Justice — Institutional Division. The indictment alleged that Mata caused the death of Omar Munoz by stabbing him with a knife. The jury charge included instructions on principal and party theories of criminal responsibility. In three issues, Mata appeals his conviction by: (1) alleging ineffective assistance of counsel; (2) challenging the factual sufficiency of the evidence to prove him guilty under the law of parties; and (3) asserting that the jury, while properly charged on the issue of parole, improperly considered how the parole law would apply to his specific situation. We affirm.
See TEX. PEN. CODE ANN. § 19.02 (Vernon 2003). Section 19.02 of the penal code states, in relevant part, that a person commits the offense of murder if the person: (1) intentionally or knowingly causes the death of an individual; or (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. TEX. PEN. CODE ANN. § 19.02(b)(1), (2) (Vernon 2003).
I. BACKGROUND
On December 31, 2000, in Pharr, Texas, Raymond Dean Sanchez met up with his friend, Omar Munoz, at a mutual friend's New Year's Eve party in an apartment complex. Sanchez testified that shortly after the new year rang in, Munoz asked Sanchez to help him obtain some cocaine. In search of the drugs, Sanchez borrowed a Dodge Ram truck from another friend and drove with Munoz to the apartment complex where appellant Mata lived with his brother, Alejandro Rodriguez Mata ("Alex"), their respective spouses, children, sister, and mother. Also present at the apartment were Ernesto Lerma, former brother-in-law to the Mata brothers, and another man by the name of Eddie, identified by Lerma as a friend. Upon arrival at the Mata residence, both Sanchez and Munoz exited the vehicle and approached the apartment, where they spoke to Mata. According to Sanchez's testimony, Mata stated that he could secure the drugs from his wife's stepfather. Sanchez, Munoz, and Mata then boarded the Dodge Ram truck and traveled to the home of the stepfather, where, upon arrival, Mata exited the vehicle to inquire about the drugs. The stepfather then returned with Mata, and the two joined Sanchez and Munoz in the truck, where they then traveled to yet another location to acquire the cocaine. When they reached the next location, Mata asked Munoz for the money and he and the stepfather exited the vehicle while Sanchez and Munoz waited in the truck. The two men returned with the cocaine, and Mata gave the drugs to Munoz. Sanchez further testified that Munoz, Mata, and the stepfather all took "swiffs" of the cocaine, although he did not actually see them taking it. Counsel for the State later clarified by her line of questioning that Sanchez knew they had snorted the cocaine because he heard them doing so. Sanchez dropped the stepfather off at his residence, and the three men headed back toward the apartment complex. On their way back, Sanchez testified, Munoz and Mata began arguing. Specifically, Munoz told Mata, "not to take a bath — not to rip him off with the stuff." Sanchez clarified his testimony during cross examination, stating that the meaning of the statement was "not to be vulgar," and in effect meant, "don't take too much of my cocaine." Mata replied that he "wasn't like that" and the argument intensified. Upon arrival at the complex, the two men became engaged in a physical altercation outside of the vehicle in the parking lot. Sanchez testified that he went to the apartment to ask Alex, Mata's brother, to come and help him break up the fight. According to Sanchez's testimony, Alex "reacted in another manner," taking out a screwdriver from his pocket and running toward the scuffle, finally jumping on top of Munoz and proceeding to stab him repeatedly with the screwdriver. Sanchez further testified that Mata continued to strike Munoz while Alex was stabbing him, and that at one point, both of them were stabbing Munoz. Sanchez testified that Alex yelled at Mata to go look for a knife that he had in the apartment. As Mata started to leave to get the knife, Sanchez testified, Mata tried to hit him as well, asking him why he brought "people like that" around. While Mata went to get the knife, Alex continued stabbing Munoz all over his body with the screwdriver. Sanchez also told the jury that, while Mata was gone, Alex attempted to attack him as well. Sanchez's testimony was unclear as to whether he left before or after Mata returned; however, he did not see a knife in Mata's hand. At one point, Sanchez stated that he could not say what happened after Mata returned because he had left. However, further into his testimony, he stated that both Alex and Mata were still hitting Munoz when he left the scene. Ernesto Lerma, the former husband of Alicia Rodriguez, one of the Mata brothers' sisters, also testified before the jury. Lerma, who lived in San Marcos, Texas, had traveled down to the Rio Grande Valley a few days prior to New Year's Eve to visit his parents. Lerma testified that he arrived at the Mata apartment shortly before midnight on New Year's Eve after taking his children to that area to purchase firecrackers. Lerma also told the jury that Raymond Dean Sanchez arrived at the residence at approximately 12:30 a.m. It was the first time he had ever seen Sanchez. According to Lerma, Sanchez and another man he did not know approached Mata and the three men conversed "by the side." The three men then left, and Lerma stayed behind with Alex. When Mata, Sanchez, and the "other person" returned about thirty to forty minutes later, Lerma testified, Sanchez exited the vehicle and took a few steps toward the apartment. Lerma stated that Alex went to see what the problem was, and "they started fighting." He also said that it was difficult for him to say what happened next because the altercation was occurring off in the distance and on the far side of the truck, obstructing his view. Conflicting with Sanchez's testimony, Lerma told the jury that Mata did not return to the apartment, but that Alex did. He further testified that Alex went into the apartment, got a knife, and returned to the area where the fight was taking place. He further stated that Sanchez left in the truck at that time and added that although the truck was no longer obstructing his view, it was still difficult to see because it was "dark there in the ditch" where Alex and Mata were. When questioned regarding the position of "the man he didn't know," what he saw Alex doing with the knife, and whether he saw someone kicking or hitting the man, Lerma stated that he could not see because it was dark. After refreshing his memory with his written statement, Lerma testified that Alex was "stabbing the guy," who was "laying down in the ditch." After further review of his statement, Lerma also testified that Mata and "the person" were fighting, and that Alex "separated them with the knife." He further testified that Mata kicked and punched the man on the ground while Alex was stabbing the man with a knife. Following the stabbing, Lerma testified, he told Alex and Mata that he was going to go home and that he "didn't want to be a part of this." Alex and Mata wanted to go with Lerma. He then got into his car, accompanied by his children, Alex, and Mata. Alex and Mata went inside the apartment before leaving, but Lerma did not. Lerma drove to his parents' home in Las Milpas, about 5 miles away from the apartment complex. Upon arrival at the home of Lerma's parents, Alex went home on foot and Mata asked Lerma to take him to his cousin's house, which Lerma did. Lerma then went to sleep. The next day, Lerma returned to San Marcos with Alicia, his children, and Mata, who wanted to go with them. Lerma stated that he did not want Mata to go with them to San Marcos "because he got in trouble," but he did not express his concern to Mata. He allowed Mata to join them. After approximately a four-hour drive to San Marcos, he drove to a house where he dropped off Alicia, the children, and Mata. He then went to his own brother's house, and he did not see Mata again after that. The following day, Lerma received a message on his answering machine from Investigator Gilbert Guerrero, asking that Lerma give a statement. Lerma returned to the valley on or about January 21, 2001, and complied with the request. Lerma further testified that there was another person present outside the apartment at the time of the occurrence — a man named "Eddie." According to Lerma, he believed that Eddie was in jail and was therefore unable to testify. Lerma also testified that nobody tried to stop Alex from returning to the parking lot with a knife because "nobody wanted to get involved," but then testified that Alicia and Adriana tried to stop Alex, following him and yelling at him, but to no avail. During cross-examination, Lerma testified that (1) he never heard Mata encourage Alex to get the knife, (2) he never heard Mata solicit Alex for help in getting the knife, (3) he did not hear Mata telling Alex to stab Munoz, and (4) he did not see Mata assisting Alex with the stabbing. Lerma also told the jury that, although his statement indicated that he saw Mata punching the victim, he actually could not say whether or not he saw Mata striking Munoz because of the distance between himself and the altercation. Lerma further stated that Investigator Guerrero threatened to have him arrested, that he feared he was going to be arrested because he had taken Mata to San Marcos, and that Guerrero did not read him his Miranda warnings. In addition, Lerma claimed that he told Guerrero "whatever he wanted to hear to avoid being arrested," and that Guerrero was "helping him" with the facts. During redirect examination, Lerma stated that he lied when he told the jury he saw Mata punching Munoz. He testified a while later that he did tell Officer Guerrero about Mata punching and kicking the victim. Lerma then read out a portion of his written statement that he claimed were Guerrero's words — not his own: "This guy was laying in the ditch when I saw Alex attack. I saw Alex attacking this guy with a knife. Alex started stabbing him several times, and he was still fighting with this guy. Mata was punching this guy while Alex was stabbing him with a knife." The jury also heard that Guerrero never arrested or handcuffed Lerma. Vanessa Quintanilla, Alex's wife and Mata's sister-in-law, was inside the apartment when the altercation began. According to her testimony, Dean Sanchez stopped in the road and "yelled for them to watch out." After refreshing her memory with her written statement, Quintanilla recounted to the jury that she saw Alex run after Sanchez from her window. She then went to the kitchen, stood by the stove, and then returned to her room because she did not see anything "going on." When she returned to the kitchen, she saw Alex, who could barely walk, limping out the door. The jury heard that Adriana Mata, sister to Mata and Alex, attempted to stop Alex from leaving by holding him by the shirt. Quintanilla followed after Alex, only going as far as her mother-in-law's vehicle. She testified that she was unable to see what was occurring in the distance, as the street light was shining on her. She also testified that she did not recall seeing Mata come inside the apartment and did not remember if Mata was present during the incident that occurred outside the apartment. When asked again to refresh her memory with her statement, Quintanilla indicated that she did not say some of the words included in the statement. During her testimony, Quintanilla read aloud the following portion that she claimed not to have said: "That's where I saw the guy lying in the ground, and Alex was on top of him. I saw Mata on top of the guy. Mata was kicking the guy. I saw Alex kick, stabbing the guy with a knife on the side, and then I saw Alex get on top from — get up from on top of the guy." Quintanilla told the jury that she left the apartment, returned the next morning, and saw the body on the ground. During direct examination, the jury heard additional testimony from Quintanilla regarding her written statement. According to Quintanilla, she was nervous and afraid because Officer Guerrero threatened to arrest her, her brother, and her sister-in-law. She further testified that she was seventeen years old, that this was her first time giving a statement, and that she was not given the opportunity to read the statement before signing it. She told the jury that she was not able to review the statement until the prosecuting attorney visited her home, some two weeks before her testimony at trial. At that time, Quintanilla testified, she indicated to the prosecutor that a portion of the statement was not hers. She was not given an opportunity to write a different statement. Quintanilla also added to her prior testimony regarding Alex's leg injury by stating that he had blood on his knee and appeared to be cut. Quintanilla added that (1) she did not see Alex fighting with anyone, (2) she did not see Mata fighting with anyone, (3) she did not see Mata stabbing anyone, (4) she did not see Mata encouraging Alex to stab anyone, (5) she did not see Mata assisting the stabbing, (6) she did not see Mata promoting the stabbing, (7) she did not see Mata solicit Alex to stab anyone, (8) she did not see Mata direct the stabbing of anyone, and (9) she did not see Mata holding anybody while Alex stabbed him. When asked if she was saying that she did not see what happened that night, she replied, "No. Where they were, there was no light." Adriana Mata, sister to the Mata brothers, testified that she too was present and with her family at the apartment on the night of the incident. In her statement to the police, she stated she saw Alex take a knife from the kitchen drawer and walk out. She saw Alex stab a man who was on the ground and saw Mata punching and kicking the man. At trial, she testified that she saw Alex and Mata enter the apartment. According to Adriana, Alex was bleeding from his knee and was "mad," screaming that nobody was going to mess with his family. She did not remember what Alex did at that point. Mata had a cut somewhere on his arm. When asked if Alex got something out of the kitchen, she replied, "I don't remember, no." When asked if Alex stayed in the apartment after that, she answered, "No, I don't remember." In response to the question, "Do you remember did he leave the apartment," she said "I guess." When asked if Mata left with him, her reply was "I don't remember. Maybe. I don't know." Regarding her written statement to the police, Adriana testified that she did not read the statement before signing it but most of it was correct. She admitted stating that she had grabbed both of her brothers by their shirts when they were in the apartment, but that they were stronger than her, so they slipped. When asked to read aloud the portion of her statement that she claimed not to have said, Adriana denied stating to the police that she saw Alex stab Munoz and Mata strike him. Adriana then confirmed the that (1) Mata never asked Alex to go do anything, (2) Mata never encouraged Alex to go do anything, and (3) Mata never directed Alex to do anything. She also testified that Investigator Guerrero and some other police officers came to her cousin George's house and arrested her mother the day after Adriana gave her statement. They threatened, she testified, to hold her mother "until her sons did something." Kevin Jordan, an investigator with the Guadalupe County Sheriff's Department, received a warrant for the arrest of Mata. When executing the warrant, Mata blurted out that it was not his fault and began to tell Jordan what happened. Jordan stopped him, advised him of his Miranda rights, and had him transported to the sheriff's office by the patrol officer. Upon arrival at the sheriff's office, Mata was magistrated before the Justice of the Peace. Following the arraignment, Jordan testified, he asked Mata if he was willing to give a statement, to which Mata indicated "yes." Jordan then advised Mata of his rights, which were waived, and proceeded to take the statement. Jordan read the statement aloud in its entirety to the jury. In his written statement admitted in evidence, Mata asserted that at around midnight on January 1, 2001, when Sanchez, Munoz, Martinez and he returned to the apartment, Munoz cussed at him and accused him of being a narc. As Mata exited the truck, Munoz, while "real drunk," pushed him to the ground and kicked him on his stomach and back. Then, according to Mata, Sanchez cut Mata's left elbow with a knife. Mata then ran around the truck to get away from Sanchez and Munoz. According to the statement, Alex saw what was going on and told Mata to get in the house. Mata saw Alex grab Sanchez by the shirt and throw him to the ground and saw Munoz punch Alex and stab him in the knee. Sanchez and Munoz ran to the truck but Sanchez pushed Munoz back and left him behind. Alex and Munoz fought; Munoz was knocked out. Alex entered the house and got a kitchen knife from the sink. Alex was mad because of the stab wound to his knee. Mata told him to leave Munoz alone. Alex got on top of Munoz, who was still knocked out, and stabbed him in the stomach with the knife. Mata tried to pull Alex off Munoz but Alex, out of control, told him to leave. Mata left the area, ending up in San Marcos. Mata finished his statement with: "I want to say that I did get into a fight with Dean and [Munoz] but only after [he] hit and kicked me. I only pushed [Munoz] in self defense. Even after Dean stabbed me, I only pushed him to get away. At no time did I ever have a knife nor did I stab anyone." Julian Zapata, an identification supervisor with the City of Pharr Police Department, testified that he attended and photographed the autopsy of the victim. He saw stab wounds on the victim's stomach and chest as well as both stab and puncture wounds on the victim's back. He also observed what appeared to be additional stab wounds on each of the victim's arms. Dr. Flugencio Salinas performed the autopsy on the body of Omar Munoz. He testified that some bruising noted on the forehead of the victim could have occurred as a result of blunt trauma. He also noted three major stab wounds — one that punctured the lung, one that penetrated the abdominal cavity, and one that penetrated the heart, any one of which could have killed the victim. Dr. Salinas testified that all three of the major wounds were consistent with knife-inflicted wounds. Regarding some smaller stab wounds on the victim's back, Dr. Salinas opined that they may have been caused by a screwdriver. He counted a total of twelve stab wounds on the victim. He also stated that toxicology testing showed the presence of both cocaine and alcohol in the victim's system. Orlando Ochoa, forensic seriologist and DNA analyst for the Texas Department of Public Safety Crime Laboratory in McAllen, Texas, performed DNA testing on various items collected at the scene. In examining a knife blade, Ochoa discovered an apparent piece of tissue in one of the serrated areas of the blade. He performed DNA tests of the tissue, which showed the tissue to be consistent with Alex's. None of the DNA testing done on of the items came back with a match for Mata.II. FACTUAL SUFFICIENCY OF THE EVIDENCE
In his second issue, Mata asserts that the evidence was factually insufficient to show that he aided or assisted Alex, the principal and actual individual who stabbed and killed Munoz. Mata asserts that mere presence at the scene is not enough; the evidence must show that he encouraged the commission of the offense by an agreement or words, and that the agreement must have occurred before or contemporaneous with the criminal event. Further, Mata states, the evidence must show that the parties were acting together, each contributing some part toward the execution of their common purpose. Mata maintains that an accused may not be held accountable as a party without some indication that he knew he was assisting in the commission of the offense. Mata argues that the State must prove that the accused harbored the specific intent to promote or assist the commission of the offense. Mata concedes that, in determining whether an accused acted as a party, the fact finder may examine events occurring before, during, and after commission of the offense. The State counters that the evidence shows that a finding of guilt under a party theory is supported by the great weight of the evidence.A. Standard of Review
We are constitutionally empowered to review the judgment of the trial court to determine the factual sufficiency of the evidence used to establish the elements of the offense with which Mata was charged. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000) (en banc). The Texas Court of Criminal Appeals has restated the factual sufficiency standard of review:There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can 'preponderate' in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). A clearly wrong and unjust verdict occurs where the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Prible v. State, No. AP-74,487, 2005 Tex. Crim. App. LEXIS 110, at *16-*17 (Tex.Crim.App. January 26, 2005) (designated for publication). When the State bears the burden of proof, the proof of guilt is factually insufficient if it is so obviously weak as to indicate that a manifest injustice has occurred or if it is greatly outweighed by contrary proof. Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex.Crim.App. 2003). In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Johnson, 23 S.W.3d. at 6-7, (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996)). In conducting a factual-sufficiency review, we review the evidence weighed by the jury that tends to prove a material disputed fact and compare it with evidence that tends to disprove it. Id. We are authorized to disagree with the fact finder's determination. Id. However, we approach a factual sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder. Id. Our evaluation should not intrude substantially on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id. We always remain aware of the fact finder's role and unique position, a position we are unable to occupy. Id. at 9. Exercise of our authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice. Id. Otherwise, we accord due deference to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Id. Absent exceptional circumstances, issues of witness credibility are for the jury, and we may not substitute our view of the credibility of a witness for the constitutionally guaranteed jury determination. Id. Every fact need not point directly and independently to the accused's guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex.Crim.App. 1981). A conclusion of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Id. We reverse a judgment of conviction only if proof of guilt is so obviously weak and manifestly unjust or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Prible, 2005 Tex. Crim. App. LEXIS 110, at *17. If we reverse a criminal case for factual insufficiency, we vacate the judgment of conviction. Clewis, 922 S.W.2d at 133-34. We remand for a new trial a criminal case reversed for factual insufficiency so a second jury has the chance to evaluate the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003) (en banc). In conducting a factual sufficiency review, we review all the evidence. Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997). In the opinion, we "show our work" when we consider and address the appellant's main argument for urging insufficiency of the evidence. TEX. R. APP. P. 47.1; Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003) ("A proper factual sufficiency review must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal."). This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Id.
B. General Verdict
When the indictment alleges alternate theories of committing the same offense, it is proper for the jury to be charged in the disjunctive and to return a general verdict of guilty. Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991) (en banc); See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 1(a) (Vernon Supp. 2004-05) (verdict must be general). The conviction will be upheld if the evidence is sufficient to support a finding of guilt under any one of the theories submitted. Kitchens, 823 S.W.2d at 258; see Aguirre v. State, 732 S.W.2d 320, 326 (Tex.Crim.App. 1987); Yandell v. State, 46 S.W.3d 357, 363 (Tex.App.-Austin 2001, pet. ref'd).C. The Law Applicable to the Sufficiency Analysis for Murder 1. The Hypothetically Correct Charge
A hypothetically correct charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict its theories of liability, and adequately describes the particular offense proof. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997); Cano v. State, 3 S.W.3d 99, 105 (Tex.App.-Corpus Christi 1999, pet. ref'd). A hypothetically correct jury charge would not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex.Crim.App. 2001). Its scope is limited by the statutory elements of the offense as modified by the charging instrument. See Fuller v. State, 73 S.W.3d 250, 254 (Tex.Crim.App. 2002) (Keller, P.J., concurring) (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App. 2000)). Malik flatly rejects use of the jury charge actually given as a means of measuring sufficiency of the evidence. See Gollihar, 46 S.W.3d at 252. Malik controls sufficiency of the evidence analysis even in the absence of alleged jury charge error. Id. at 255. Here, with sufficient evidence of Mata's participation in the planning and commission of Munoz's murder, the indictment supported a jury instruction on the law of parties without a parties allegation in the indictment. See Goff v. State, 931 S.W.2d 537, 544 n. 5 (Tex.Crim.App. 1996) (en banc). In determining whether an accused participated as a party in an offense, a fact finder may examine the events occurring before, during, and after the commission of the offense and rely on actions of the accused that show an understanding and common design to commit the offense. Hanson v. State, 55 S.W.3d 681, 690 (Tex.App.-Austin 2001, pet. ref'd). Thus, conviction was authorized under the evidence in this case if a rational jury could find that Mata intentionally caused Munoz's death, either as a principal or as a party. See TEX. Pen. CODE ANN. § 19.02(b)(1) (Vernon 2003); see also Hanson, 55 S.W.3d at 690. A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(1) (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. Id. § 7.01 (Vernon 2003). A person is criminally responsible for an offense committed by another if, 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. Id. § 7.02(a)(2) (Vernon 2003). Mata was charged under the law of parties. Accordingly, the jury could convict him if it found that he was "present at the commission of the offense and encourage[d] its commission by words or other agreement." King v. State, 29 S.W.3d 556, 564 (Tex.Crim.App. 2000) (en banc). Thus, evidence is sufficient to convict under the law of parties where the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1994) (en banc).D. Inferences of Guilt
In addition to the court's charge, we note that mental states may be inferred and proven from acts done, words spoken, and the surrounding circumstances. See Ledesma v. State, 677 S.W.2d 529, 531 (Tex.Crim.App. 1984) (en banc). Intent, in particular, is often shown by acts done, words spoken, and conduct of the accused at the time of the offense. See Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App. 1982) (panel opinion). Evidence of flight is admissible as a circumstance from which a jury may draw an inference of guilt. Bigby v. State, 892 S.W.2d 864, 883 (Tex.Crim.App. 1994) (en banc). As is almost always the case, intent must be established by circumstantial evidence. See Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App. 1978). The jury may infer the requisite intent from the conduct of the accused. See Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001).E. Sufficiency Analysis
Mata asserts that the evidence is factually insufficient to prove that he was a party to the offense. Mata argues that the evidence shows that he participated only by kicking and punching Munoz. He argues that the evidence does not establish that he in any way solicited, encouraged, directed, aided his brother, or was an active participant in stabbing Munoz to death. He adds that there is no evidence, direct or circumstantial, to show that Alex and he had an agreement or plan to kill Munoz. The State counters that Mata was responsible for the murder of Munoz as either a principal or a party. The State points out that on appeal, Mata challenges only the factual sufficiency of the evidence under the law of parties and, thus, the evidence supports Mata's conviction as a principal. The State presented evidence on both principal and party theories. The jury charge contained an instruction on both theories. Thus, the charge authorized the jury to find Mata guilty if he acted either as a party or as a principal to the offense. The jury rendered a general verdict of guilty. Because Mata has chosen not to challenge the sufficiency of the evidence on the principal theory, he has waived any argument he might have had on appeal. See TEX. R. APP. P. 38.1 (e), (h) (brief must state concisely all issues presented for review, must contain clear and concise argument for contentions made, with appropriate citations to authorities and record, respectively). Thus, if evidence of guilt is sufficient, we will affirm the verdict based on the State's principal theory. See Rabbani v. State, 847 S.W.2d 555, 558 (Tex.Crim.App. 1992) (en banc); Edwards v. State, 106 S.W.3d 833, 839 (Tex.App.-Dallas 2003, pet. ref'd) (if evidence of guilt is sufficient either as principal or as party, appellate court must affirm jury's verdict); see also Kitchens, 823 S.W.2d at 259. Mata contends the evidence is factually insufficient for a rational juror to find he was a party to the murder. Mata challenges only the sufficiency of the evidence as to the State's party theory. The evidence shows that, while traveling together in the truck after purchasing cocaine, Mata and Munoz argued. The argument intensified. The two fought once they arrived at the apartment complex and exited the vehicle. Sanchez went to ask Alex, who was in the apartment, to help break up the fight. Alex used a screwdriver from his pocket to stab Munoz. While Alex stabbed Munoz, Mata continued to strike him. Sanchez, at one point, saw both Mata and Alex stab Munoz. Sanchez heard Alex yell to Mata to go look for a knife in the apartment. As Mata walked by Sanchez on his way to the apartment, Mata tried to hit Sanchez, asking him why he brought "people like that" around. The record shows evidence that conflicts with Sanchez's testimony. Lerma testified that he saw Alex retrieve a knife from the apartment and return to the fight. Lerma testified that Mata kicked and punched Munoz, who was on the ground, while Alex stabbed Munoz with a knife. Lerma testified that he did not hear Mata encourage Alex to get the knife. He did not hear Mata ask Alex for help in getting the knife. He also did not hear Mata tell Alex to stab Munoz. He did not see Mata stab Munoz. Mata's sister-in-law testified that she saw Alex inside the apartment and could not really see what was occurring outside. In her statement to the police, she stated she saw Munoz on the ground, Alex on top of him, and Mata kicking him. Mata's sister testified that she saw Mata and Alex in the apartment, both with cuts, but that she did not see an altercation outside. In her statement to the police, she indicated that she saw both her brothers inflicting injury on Munoz while he was on the ground. In his statement to law enforcement read to the jury, Mata admitted he fought with Munoz but claimed self-defense. The evidence establishes that, on January 1, 2001, eye witnesses saw Mata punch and kick Munoz, while Alex stabbed him. One eyewitness saw both men at one point stabbing Munoz. Munoz sustained stab wounds to the front and back of his body, consistent with injuries from a knife and a screwdriver. One eyewitness saw Alex remove a screwdriver from his pocket and stab Munoz. The same eyewitness heard Alex yell to Mata to get a knife from the kitchen drawer. On his way to comply, Mata attempted to strike the eyewitness. As the eyewitness left the scene shortly after that encounter with Mata, he saw Alex and Mata hitting Munoz. Alex and Mata left the scene. Mata fled to San Marcos. The jury was free to place whatever value it wished on Mata's statement. See Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. 2000) (en banc). The State presented testimony throughout the trial of witnesses who recalled the key events that occurred on January 1, 2001. The jury was free to reconcile any discrepancies in the testimony before it and judge the credibility of the witnesses. Id. at 111. Moreover, the jury was free to disbelieve Mata's statement to police that he fought with Munoz in self-defense. We find that the jury could have inferred that Mata's actions before, during, and after Munoz's murder showed an understanding of the offense as a party. See Hanson, 55 S.W.3d at 690. Having reviewed all the evidence in a neutral light with appropriate deference to the jury's credibility determinations, we conclude that the evidence demonstrates that a rational trier of fact could have found beyond a reasonable doubt that Mata participated in this offense as a party. King, 29 S.W.3d at 564; Ransom, 920 S.W.2d at 288. The evidence showed that Mata joined his brother in inflicting injury to Munoz as Munoz was on the ground. That the evidence of guilt was not free of contradiction and that the credibility of witnesses may have been subject to question does not require us to conclude that the verdict was factually insupportable. See Zuliani, 97 S.W.3d at 593-94. Those circumstances merely create issues for the jury to resolve. Id. Faced with a record of historical facts that supports conflicting inferences, we presume that the trier of fact resolved any conflicts in favor of the prosecution. See Jackson, 443 U.S. at 326. The jury chose to resolve the evidence in favor of the prosecution. We defer to that resolution. Id. We conclude that the evidence supporting the verdict is not too weak to support the jury's finding of Mata's participation as a party nor is the weight of the evidence contrary to the verdict strong enough that the State could not have met its burden of proof. See Zuniga, 144 S.W.3d at 484-85. We conclude the evidence was factually sufficient to support the conviction. Id. We further conclude, although unnecessary to our analysis, that the same evidence is factually sufficient to show Mata participated as a principal. Id.; see TEX. PEN. CODE Ann. § 7.02(a)(2) (Vernon 2003); see also Rabbani, 847 S.W.2d at 558; Edwards, 106 S.W.3d at 839; Kitchens, 823 S.W.2d at 259. We overrule Mata's second issue.IV. EFFECTIVE ASSISTANCE OF COUNSEL
In his first issue, Mata asserts that his conviction should be reversed because he was denied effective assistance of counsel. In particular, Mata states that his trial counsel was ineffective because he failed to urge a motion to suppress Mata's statement. Mata maintains this motion should have been urged on the basis that his arrest was illegal and because his counsel failed to adduce facts at trial that would entitle Mata to an instruction of unconstitutional arrest. Mata asserts that the record does not support a finding of trial strategy. The State responds that trial counsel was vigilant at trial, lodged appropriate objections, and vigorously cross-examined witnesses. The State adds that both complaints are unsupported in law or in fact. A claim of ineffective assistance of counsel must be firmly supported in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (per curiam) (en banc). When determining the validity of a defendant's claim of ineffective assistance of counsel, we must be highly deferential to trial counsel and avoid the distorting effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App. 1984) (en banc). We presume counsel's performance was the result of sound or reasonable trial strategy. Strickland v. Washington, 466 U.S. 668, 688 (1984); see also Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App. 1991) (en banc). We will not base a finding of ineffectiveness on speculation. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (per curiam); Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.). Mata has not rebutted the presumption he was adequately represented. See Strickland, 466 U.S. at 688. For example, regardless of whether counsel's failure to adduce evidence to allow a request for a jury instruction on unconstitutional arrest was deficient performance, Mata has not proved to a reasonable probability that, but for counsel's failure to adduce evidence and request the instruction, the result of the proceeding would have been different. See Strickland, 466 U.S. at 698. At trial, the Guadulupe County Sheriff's Department investigator, Kevin Jordan, testified that he was contacted by Investigator Guerrero on January 2, 2001, at approximately 9:00 a.m. According to Jordan, Guerrero was asking for assistance, so Jordan requested that Guerrero provide him with a description of the suspect and fax him a copy of the arrest warrant. About forty-five minutes later, Jordan received the copy of the warrant and the confirmation of the warrant for the arrest of Mata. Jordan testified that he was told the suspect was armed and dangerous. He gathered a group of officers and headed to an address on Spruce Street in northern Guadalupe County. Upon arrival, the group discovered that Mata was not present. Jordan left a card with a resident and asked her to call him if Mata showed up. Shortly after noon, Jordan received a phone call from the resident, and he, along with an additional investigator and a patrol Sergeant, traveled back to the residence. When he encountered Mata, he identified himself and advised Mata that he was under arrest. At that point, Jordan testified, Mata blurted out that it was not his fault and began to tell Jordan what happened. Jordan stopped him, advised him of his Miranda rights, and had him transported to the sheriff's office by the patrol officer. Upon arrival at the sheriff's office, Mata was magistrated before the Justice of the Peace. Following the arraignment, Jordan testified, he asked Mata if he was willing to give a statement, to which Mata indicated "yes." Jordan then advised Mata of his rights, which were waived, and proceeded to take the statement. Jordan read the statement aloud in its entirety to the jury. During cross examination, Jordan stated that Mata was not armed at the time of the arrest, and that he voluntarily surrendered. The events leading up to Mata's arrest while in San Marcos were developed. Even so, Mata failed to demonstrate prejudice from the alleged deficiency and failed to prove ineffective assistance of counsel. See Rangel v. State, 972 S.W.2d 827, 835 (Tex.App.-Corpus Christi 1998, pet. ref'd). When the record is silent regarding the motivation of counsel's tactical decisions, the defendant cannot overcome the strong presumption that counsel acted reasonably. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999); Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002) ("If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal."). Thus, on this record, we conclude that Mata has failed to establish that his trial counsel was ineffective. Without a record of trial counsel's overall performance and strategic decisions, we cannot determine if counsel's performance was objectively deficient or if it created an unnecessarily disadvantageous result. See Jackson, 877 S.W.2d at 771. We overrule Mata's first issue.V. JURY MISCONDUCT
In his third issue, Mata asserts that the jury, while properly charged on the issue of parole, nonetheless considered how the parole law would specifically apply to Mata's case. Mata states that, while the law permits the jury to discuss and consider the existence of parole law, in generic form, it is clearly impermissible to attempt to apply the parole law to the particular defendant on trial or to consider the possibility of parole in arriving at or calculating a specific sentence which directly applies to the particular defendant on trial. Mata also asserts that the jury failed to follow the parole instruction. The State counters that Mata waived error, and, even if he had not waived error, the trial court did not abuse its discretion in failing to grant a new trial because doing so would have constituted an improper inquiry into the validity of the verdict in violation of Texas Rule of Evidence 606(b).A. Motion for New Trial
We construe Mata's issue broadly, as we must. TEX. R. APP. P. 38.1(e), 38.9. Mata filed a motion for new trial alleging jury misconduct during the culpability phase of deliberations by discussing appropriate punishment if the jury found Mata guilty and during the punishment phase by discussing and attempting to calculate the time Mata would be incarcerated before being released on parole. Two jurors' affidavits are in the clerk's record bearing a filing date of February 6, 2002. The record does not establish that the trial court considered the affidavits at the motion for new trial hearing or that they were admitted in evidence. In the affidavits, the jurors attest that in assessing the ninety-nine year sentence, the jury considered parole and "calculated the parole" and, essentially, except for the discussions, they would not have voted for the ninety-nine year sentence. An order setting a hearing on the motion appears in the record. A docket entry shows that the hearing was reset and called for hearing on February 7, 2002. After arguments made by both sides, the trial court denied the motion for new trial. The record on appeal contains neither an order denying the motion for new trial nor a reporter's record of a hearing on the motion for new trial. Rule 21.2 of the Texas Rules of Appellate Procedure states that a motion for new trial is a prerequisite to presenting a point of error on appeal only when necessary to adduce facts not in the record. We have no reporter's record of the motion for new trial hearing. However, the Court may receive evidence by affidavit or otherwise. TEX. R. APP. P. 21.7. The granting of a motion for new trial must be accomplished by written order. TEX. R. APP. P. 21.8(b). A docket entry does not constitute a written order. Id. A docket entry may not substitute for a written order as a means to dispose of a motion for new trial. State v. Garza, 931 S.W.2d 560, 562 (Tex.Crim.App. 1996) (en banc); State v. Zavala, 28 S.W.3d 658, 659 (Tex.App.-Corpus Christi 2000, pet. ref'd). A docket sheet entry does not become part of the record because it is inherently unreliable. State v. Shaw, 4 S.W.3d 875, 878 (Tex.App.-Dallas 1999, no pet.). A motion not timely ruled on by written order will be deemed denied within seventy-five days after imposing or suspending sentence in open court. Tex.R.App.P. 21.8(c). Because no order disposing of the motion for new trial appears in the record, we conclude that the motion was overruled by operation of law. Id. We turn now to the merits of Mata's complaint.B. Scope and Standard of Review
An appellate court reviews a trial court's denial of a motion for new trial under the "abuse of discretion" standard. Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004). We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable. Id. We must view the evidence in the light most favorable to the trial court's ruling and presume that all reasonable factual findings that could have been made against the losing party were made against that losing party. Id. Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Id. We must defer to any reasonable implied factual findings that the trial court might have made in denying a motion for new trial. See id. at 211. In the context of the denial of a motion for new trial, "[a] deferential rather than de novo standard applies to our review of a trial court's determination of historical facts when that determination is based, as here, solely upon affidavits" regardless of whether the affidavits are controverted. Id. at 210. The person who composes the affidavits must ensure that they contain sufficient specific concrete facts that are free from any ambiguity, uncertainty, or inconsistency as to clearly establish entitlement to relief. Id. at 213. Even so, the trial judge is not required to believe those factual statements, even when they are uncontradicted by other affidavits. See id. Just as a jury may "believe all, some, or none of the testimony," so may a trial judge believe all, some, or none of an affidavit, even though it may be difficult (if not impossible) to assess an affiant's credibility solely from the cold, hard page. Id.C. The Law
The defendant must be granted a new trial when, after retiring to deliberate, the jury has received other evidence, when a juror has talked with anyone about the case, or when a juror became so intoxicated that his or her vote was probably influenced as a result. TEX. R. APP. P. 21.3(f). The defendant must be granted a new trial when the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial. TEX. R. APP. P. 21.3(g). Rule 606(b) of the Texas Rules of Evidence limits the method by which a defendant may prove jury misconduct. Hines v. State, 3 S.W.3d 618, 621 (Tex.App.-Texarkana 1999, pet. ref'd.). Rule 606(b) provides that upon an inquiry into the validity of a jury's verdict, a juror may not testify as to any matter or statement occurring during the jury's deliberations or to the effect of anything on any juror's mind or emotions or mental processes as influencing any juror's assent to or dissent from the jury's verdict. TEX. R. EVID. 606(b). The rule further provides that a juror's affidavit concerning such matters may not be admitted in evidence for any of those purposes. Id. The rule does provide that a juror may testify as to whether any outside influence was improperly brought to bear upon any juror. Id. A motion for new trial based on jury misconduct must be supported by a juror's affidavit alleging that "outside influences" affected the jury's decision. Hines, 3 S.W.3d at 623. While case law has not clearly identified what constitutes an outside influence, it has clearly rejected certain conduct as constituting outside influence. Id. Thus, it has been held that information gathered by a juror and introduced to the other jurors by that juror does not amount to outside influence, even if introduced specifically to prejudice the jurors' votes. Id. Nor does coercive influence of one juror on the rest of the panel constitute "outside influence." Id. Even a juror's injection of his own personal experiences, knowledge, or expertise is not considered an outside influence, because those representations emanate from inside the jury. Id. A juror's discussion about the application of the parole law to the defendant's sentence does not constitute an outside influence. Richardson v. State, 83 S.W.3d 332, 361-62 (Tex.App.-Corpus Christi 2002, pet. ref'd). Where there is no rule 606(b) objection, a jury's discussion of parole constitutes reversible error when a defendant shows: (1) a misstatement of the law; (2) asserted as a fact; (3) by one professing to know the law; (4) which is relied upon by other jurors; (5) who for that reason changed their vote to a harsher punishment. Salazar, 38 S.W.3d at 147 (citing Sneed v. State, 670 S.W.2d 262, 266 (Tex.Crim.App. 1984)). Where there is conflicting evidence on an issue of fact as to jury misconduct, the trial judge determines the issue and there is no abuse of discretion in overruling the motion for new trial. Id. at 148. We generally presume the jury follows the trial court's instructions in the manner presented. See Williams v. State, 937 S.W.2d 479, 490 (Tex.Crim.App. 1996) (jury presumed to follow court's instructions as given); Waldo v. State, 746 S.W.2d 750, 753 (Tex.Crim.App. 1988) (en banc) (jury presumed to follow instruction to disregard evidence); Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App. 1987) (en banc); see also Luquis v. State, 72 S.W.3d 355, 360 (Tex.Crim.App. 2002) (en banc).D. Analysis
Texas Rule of Appellate Procedure 21.7 allows the trial court in a criminal case to receive evidence on a motion for new trial by affidavit or otherwise. TEX. R. App. P. 21.7. Viewed in the light most favorable to the trial court's ruling, the two jurors' affidavits do not reveal any outside influence that was improperly brought to bear on any juror. The jurors' statements about the effect of parole on Mata's sentence were clearly statements made by jurors during deliberations and thus emanated from inside the jury. Inasmuch as the affidavits were evidence concerning the jurors' deliberations that did not constitute an outside influence, the trial court did not abuse its discretion in allowing the motion to be overruled by operation of law. On this record, even if the affidavits constitute evidence that the jury discussed parole during the culpability phase of the trial, Mata has not shown the trial court abused its discretion. An instruction on the parole law is mandated under article 37.07, section 4, of the Texas Code of Criminal Procedure. See Tex. CODE CRIM. PROC. ANN. art. 37.07 sec. 4 (Vernon Supp. 2004-05). The charge given to Mata's jury substantially followed the language in the code. There is a strong presumption that jurors follow the court's instructions. Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998). The presumption is rebuttable. Mata argues that the affidavits establish that the jury openly discussed the effects of parole laws and made an effort to calculate the amount of sentence as applied to him. To establish reversible error due to the jury's discussion on parole law, Salazar requires proof of the Sneed factors which are: (1) a misstatement of the law, (2) asserted as a fact, (3) by one professing to know the law, (4) which was relied upon by other jurors, (5) who for that reason changed their vote to a harsher punishment. Salazar, 38 S.W.3d at 147. Even when the parole law is discussed and the jurors consider how much time a defendant might actually serve, if no actual misstatement is made, there is no reversible error. Ortega v. State, 863 S.W.2d 238, 242 (Tex.App.-Eastland 1993, pet. ref'd). Mata did not obtain a hearing to adduce facts not in the record. As such, the evidence that the jury discussed parole during deliberations of punishment consists of the two jurors' affidavits. In virtually identical affidavits, the two jurors stated that (1) "There was a large discussion surrounding the parole issue and how it would affect this person," and (2) "After participating in the parole discussion, I changed my verdict to 99 years based on the parole discussion and after having considered parole." The affidavits do not establish (1) a misstatement of the law, (2) asserted as a fact, (3) by one professing to know the law, (4) which is relied upon by other jurors, (5) who for that reason changed their vote to a harsher punishment. Salazar, 38 S.W.3d at 147; Kelley v. State, 841 S.W.2d 917, 921 (Tex.App.-Corpus Christi 1992, no pet.). The trial court was free to believe all, some, or none of the affidavits. Charles, 146 S.W.3d at 213. Further, Mata did not rebut the presumption that jurors followed the court's instructions on parole. We conclude that the trial court did not abuse its discretion in denying the motion for new trial. Kelley, 841 S.W.2d at 921. We overrule Mata's third issue.VI. CONCLUSION
We affirm the trial court judgment.DISSENT ON DESIGNATION
Respectfully, I disagree that the opinion is a "memorandum opinion." See TEX. R. APP. P. 47.2(a), 47.4, 47.5. Indeed, we are bound by the applicable rules and a majority vote can order the designation as has occurred here. However, the anomaly is that the majority on designation converts a proposed opinion to a memorandum opinion and then proceeds to analyze it, in large part, under memorandum opinion standards. See TEX. R. APP. P. 47.4. Even so, I am pleased that the parties receive their answer today, under either designation.