Opinion
No. 05-04-00842-CR
Opinion filed August 23, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F03-55508-NI. Affirmed.
Before Justices MOSELEY, FITZGERALD, and LANG.
OPINION
A jury found Raymond Saldana Perez, Jr. guilty of the murder of Frank Ortiz. After appellant pled true to one enhancement paragraph, the jury assessed punishment at life imprisonment and a $5,000 fine. Appellant asserts four issues on appeal, arguing (1) the evidence is factually insufficient to support his conviction; (2) the trial court erred in submitting an instruction on the law of parties; and (3) and (4) the trial court erred in ruling on the admissibility of certain evidence in the guilt/innocence and the punishment phases of the trial. Concluding there is no merit in appellant's arguments, we resolve his issues against him and affirm the trial court's judgment. I. FACTUAL AND PROCEDURAL BACKGROUND Because appellant's first two issues concern the law of parties, we focus the factual recitation on the evidence regarding that issue. Ortiz was shot between 4:00 and 4:30 a.m., Sunday, September 7, 2003, as he sat in the driver's seat of his car, with the engine running and the headlights on, in an apartment building parking lot. There were bullet holes in the rear window of Ortiz's car, and Ortiz had been shot twice in the right side of his head. On the ground behind Ortiz's car was broken glass, like that from a car side mirror. On Saturday evening, Ortiz had met Yesenia ("Dee Dee") Flores, who was appellant's girlfriend. There was evidence that appellant was "violently possessive" of Dee Dee. Appellant testified in his own defense he knew Dee Dee was spending the evening with another man. Appellant testified that about 2:30 or 3:00 a.m. on Sunday, September 7, Dee Dee called appellant's roommate, Jose Guadarrama III, on her cell phone and told him that "she was afraid because the person that wouldn't take her home was feeling on her." Appellant told Guadarrama that it was "her problem," but Guadarrama grabbed his gun and the keys to a pickup truck and left. Appellant accompanied him because Dee Dee was "in trouble." Appellant drove the truck. Dee Dee called appellant on her cell phone and told him that she was in a friend's apartment. She told him where Ortiz was parked and described the car. When appellant and Guardarrama arrived at the parking lot, Guadarrama saw Ortiz's car. According to appellant, he parked directly behind the car and asked, "[W]here's Dee Dee?" Ortiz replied, "[S]he's up there." Then, according to appellant, Guadarrama started shooting through the truck's open window, hitting the truck's rearview mirror. Appellant drove away when he heard the car's horn. Guadarrama was described as weighing "at least 300-and-something pounds." A witness who was in one of the apartments testified he heard shots that night, looked out a window overlooking the parking lot, and saw a man running from the car to the passenger side of a pickup truck. The witness described the man as "medium sized." Three of appellant's friends testified Guadarrama admitted he shot Ortiz. However, Dee Dee's sister, Veronica Flores, testified that appellant drove a truck with a broken driver's side view mirror to the Flores home a few days after Ortiz was killed and admitted he killed Ortiz. Specifically, Veronica testified that appellant told her "he shot a guy in his head five times" because the guy "was messing with" Dee Dee. Appellant denied making these statements to Veronica. There was testimony that Guadarrama was killed about two weeks after Ortiz was killed. On rebuttal, Dee Dee denied that appellant planned to blame Guadarrama for Ortiz's murder after Guadarrama died. Also on rebuttal, Veronica testified that Dee Dee told her that appellant planned to blame Guadarrama for the murder of Ortiz. There was evidence that, although appellant owned two guns, the bullets that killed Ortiz did not come from those guns. The murder weapon was never found. Likewise, the police looked for the pickup truck, but never found it. Appellant was indicted for the murder of Ortiz. The jury charge authorized the jury to find appellant guilty if it found appellant was "either acting alone or with another as a party to the offense." After returning a verdict of guilty, the jury heard evidence on punishment. Appellant timely appealed the trial court's judgment. II. CHARGE ERROR In his second issue, appellant contends that the trial erred in submitting an instruction on the law of parties over his objection because there was insufficient evidence to justify submission of the parties theory. A. Applicable Law and Standard of Review "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." Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). A person is criminally responsible for an offense committed by the conduct of another if, acting 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). Therefore, under the law of parties, the State is able to enlarge a defendant's criminal responsibility to acts in which he may not be the principal actor. Goff v. State, 931 S.W.2d 537, 544 (Tex.Crim.App. 1996). 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). Thus, courts may charge the jury on the law of parties, even in the absence of an allegation in the indictment charging the accused as a party, so long as such an instruction is supported by the evidence. Gant v. State, 116 S.W.3d 124, 133 (Tex.App.-Tyler 2003, pet. ref'd); see Brown v. State, 716 S.W.2d 939, 945 (Tex.Crim.App. 1986) (concluding instruction allowing jury to convict on finding that defendant, either alone or acting as party with another person, did act charged is permissible "`if the evidence raises both the theory that the defendant did the act charged and the theory that another person participated with defendant in doing that act'") (citation omitted). The test for determining when an instruction should be submitted to the jury on the law of parties was set forth in McCuin v. State, 505 S.W.2d 827 (Tex.Crim.App. 1974):
Where the evidence introduced upon the trial of the cause shows the active participation in the offense by two or more persons, the trial court should first remove from consideration the acts and conduct of the non-defendant actor. Then, if the evidence of the conduct of the defendant then on trial would be sufficient in and of itself, to sustain the conviction, no submission of the law of [parties] is required . . .
On the other hand, if the evidence introduced upon the trial of the cause shows, or raises an issue, that the conduct of the defendant then upon trial is not sufficient, in and of itself, to sustain a conviction, the State's case rests upon the law of [parties] and is dependent, at least in part, upon the conduct of another. In such a case, the law of parties must be submitted and made applicable to the facts of the case.Id. at 830 (emphasis added). To determine whether appellant was a party to Guadarrama's actions, the trial court may look to events before, during, and after the commission of the crime. Goff, 931 S.W.2d at 545. Mere presence or even knowledge of an offense does not make one a party to the offense. Barnes v. State, 62 S.W.3d 288, 297 (Tex.App.-Austin 2001, pet. ref'd). Nevertheless, mere presence is a circumstance tending to prove that a person is a party to the offense, and when taken with other facts, may be sufficient to show that the accused was a participant. Id. B. Discussion The jury was charged pursuant to section 7.01 and 7.02(a)(2) of the penal code as follows:
All persons are parties to an offense who are guilty of acting together in the commission of an offense. 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. A person is criminally responsible to an offense committed by the conduct of another if, acting 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. Mere presence alone will not constitute one as a party to an offense.
. . .
Now, considering all the law contained in the court's charge, if you find and believe from the evidence beyond a reasonable doubt that on or about September 7, 2003, in Dallas County, Texas, [appellant], either acting alone or with another as a party to the offense, did either
(1) intentionally or knowingly cause the death of Frank Ortiz, an individual, by shooting him with a firearm, a deadly weapon,
OR
(2) intend to cause serious bodily injury to Frank Ortiz and in so doing commit an act clearly dangerous to human life, that is, shooting Frank Ortiz with a firearm, a deadly weapon, and did thereby cause the death of Frank Ortiz, an individual, you shall find [appellant] guilty of murder as charged in the indictment. The jury heard evidence that appellant knew Guardarrama had a gun, drove the pickup truck to the scene, and continued to look for Ortiz's car and parked so as to block it, even when appellant, en route to the scene, learned from Dee Dee that she was no longer in Ortiz's car. Further, there was evidence that appellant drove Guadarrama away from the scene. Accordingly, we conclude that there was evidence to support the inference that appellant acted as a party to the offense. See Goff, 931 S.W.2d at 545. Because the trial court did not err in giving a law of parties instruction, we resolve appellant's second issue against him.III. FACTUAL SUFFICIENCY OF THE EVIDENCE In his first issue, appellant argues that the evidence is factually insufficient to sustain his conviction. Specifically, he argues that the only evidence that he, as opposed to Guadarrama, shot Ortiz was Veronica's testimony that appellant admitted the offense. Appellant argues that this evidence was "far outweighed by the contrary evidence" that included lack of physical evidence, such as the murder weapon, pickup truck, and an eyewitness to the shooting; Guadarrama's admissions that he shot Ortiz; and Guadarrama's behavior after the incident. A. Standard of Review and Applicable Law In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). We examine the evidence in light of the elements of the crime as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). The correct charge "would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. In the factual sufficiency analysis, the trier of fact is the sole judge of the weight and credibility of the testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). Appellate courts should be on guard not to substitute their own judgment in these matters for that of the trier of fact. Id. When, as here, the trial court's charge authorizes the jury to convict the defendant as a primary actor or as a party, the jury returns a general verdict, and the evidence is sufficient to support a guilty finding under any of the allegations submitted, the verdict will be upheld. See Rabbani v. State, 847 S.W.2d 555, 558 (Tex.Crim.App. 1992). A person commits the first degree felony offense of murder if he intentionally or knowingly causes the death of an individual or 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). Evidence is sufficient to support a conviction under the law of parties where the actor is physically present at the commission of the offense, and encourages the commission of the offense either by words or other agreement. Becker v. State, 840 S.W.2d 743, 746 (Tex.App.-Houston [1st Dist.] 1992, no pet.). The evidence must show that at the time of the offense the parties were acting together, each contributing some part towards the execution of their common purpose. Id. B. Discussion Appellant argues the evidence is factually insufficient to prove he shot Guadarrama, because such evidence is "far outweighed by the contrary evidence. . . ." However, the "contrary evidence" he refers to is evidence that Guadarrama shot Ortiz. Here, applying the law of parties as charged, the jury could have convicted appellant under either scenario: i.e., if it believed either that (1) appellant intentionally or knowingly caused Ortiz's death by shooting him or intended to cause serious bodily injury to Ortiz and in so doing committed an act clearly dangerous to human life, that is, shooting him, and thereby caused Ortiz's death, or (2) Guadarrama committed each element of the offense and that appellant, "acting with the intent to promote or assist the commission of the offense, . . . solicit[ed], encourage[d], directed, aid[ed], or attempt[ed] to aid" Guadarrama in committing the offense. See Beardsley v. State, 738 S.W.2d 681, 684 (Tex.Crim.App. 1987). Appellant himself presented evidence that Guadarrama shot Ortiz, and that he, appellant, drove Guadarrama to the scene, knowing Guadarrma had a gun, blocked Ortiz's car by parking directly behind it, and drove Guadarrama from the scene after the shooting. Accordingly, there was evidence that Guadarrama shot Ortiz and that appellant aided Guadarrama in committing the offense of murder. See Thompson v. State, 697 S.W.2d 413, 417 (Tex.Crim.App. 1985) (sustaining conviction as party to offense when appellant drove get-away vehicle); Webber v. State, 757 S.W.2d 51, 56 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd) (same). Having reviewed the evidence detailed above, as well as all the record evidence, we conclude that the evidence supporting appellant's conviction for murder as a party is not so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. We resolve appellant's first issue against him. IV. EVIDENTIARY RULINGS In his third issue, appellant contends the trial court erred in excluding evidence in the guilt/innocence phase that Guadarrama died in an armed confrontation with police. In his fourth issue, appellant contends that the trial court abused its discretion in admitting unqualified reputation testimony from a police officer in the punishment phase. A. Standard of Review We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Crim.App. 1991) (op. on reh'g). As long as the trial court's ruling was at least within the zone of reasonable disagreement, the appellate court will not intercede. Id. at 391; see Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996) (noting standard of review on admissibility of evidence at punishment phase is abuse of discretion). B. Guilt/Innocence Phase Evidence When appellant attempted to offer evidence that Guadarrama died in an armed confrontation with police, the State objected that, while the fact that Guadarrama was dead was relevant, how he died was not relevant. The trial court agreed and excluded the evidence. It is undisputed that the circumstances under which Guadarrama died were unrelated to Ortiz's murder. 1. Applicable Law Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination to the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence. Stewart v. State, 129 S.W.3d 93, 96 (Tex.Crim.App. 2004). 2. Discussion Appellant argued below that the fact that Guadarrama died in a shootout with police was relevant to show Guadarrama's "propensity for violence," and the fact that Guadarrama "carried a gun and, in fact, used the gun by shooting at police shows that he carried a gun and . . that he was willing to use the gun and shoot at people." On appeal, appellant argues that whether Guadarrama shot Ortiz was an issue of consequence to appellant's theory that Guadarrama was the shooter and to both of the State's alternative theories that appellant alone was responsible for the shooting of Ortiz or that appellant was guilty as a party because he allegedly knew what Guadarrama was intending to do and assisted him as a party. However, appellant testified that Guadarrama "got shot down by the police." The trial court sustained the State's objection that "I made a motion regarding this"; the jury was instructed to disregard the statement. Later, appellant testified, without objection, that Guadarrama "got shot down." Thus, assuming that the trial court erred in excluding the evidence that Guadarrama died in an armed confrontation with police, any error was harmless because similar evidence was introduced by appellant. See Sorenson v. State, 856 S.W.2d 792, 794-95 (Tex.App.-Beaumont 1993, no pet.) ("Any error caused by the exclusion of evidence is cured because similar evidence was produced before the jury."). Because of our disposition of appellant's arguments regarding error in excluding this evidence, we resolve appellant's third issue against him. C.Punishment Phase Evidence In his fourth issue, appellant contends that the trial court abused its discretion in admitting unqualified reputation testimony by a Farmer's Branch police officer, David Trevino, because Trevino based his testimony on appellant's status as a wanted felon and his past criminal history, not on a "synthesis" of community observations. 1. Applicable Law Article 37.07, section 3(a)(1) of the code of criminal procedure provides, in pertinent part:
Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the [S]tate and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2004-05). "It is imperative that a reputation witness has discussed the accused's reputation with members of the community as a basis for his opinion that such reputation is bad." Wagner v. State, 687 S.W.2d 303, 313 (Tex.Crim.App. 1984) (op. on reh'g). A reputation witness's testimony must be based on discussions with others concerning the defendant or on hearing others discuss the defendant's reputation, and not just on personal knowledge. Adanandus v. State, 866 S.W.2d 210, 226 (Tex.Crim.App. 1993). Discussions with other police officers are sufficient to qualify a witness on reputation. Turner v. State, 805 S.W.2d 423, 429 (Tex.Crim.App. 1991). Reputation opinion must be at least partially based on a discussion of matters other than the actions or offenses for which the defendant is being tried. Id. 2. Discussion Trevino testified that he was familiar with appellant's reputation within the community and that appellant was a "very well-known VNS gang member who is very dangerous. Armed and dangerous." When asked about appellant's "reputation for lawfulness," the officer replied, "Totally disregard [sic] the law." Outside the presence of the jury, the officer was asked the source of his information, and he replied: Just due to the fact that he did have a murder warrant out for his arrest. I received information from my sergeant in CID who received his information from Dallas P.D., and it showed to be that he was wanted for murder and was armed and dangerous. And his criminal history did show he's got several other charges in the past, too. So I do believe he is very dangerous. Appellant objected that the basis of the officer's reputation testimony was "legally insufficient." In addition to this testimony, Trevino testified that he worked on the local "gang assignment" and knew appellant as a member of the "Vario Northside" gang, which was "very well known for probably about four to five drive-bys within our city and drugs." Trevino testified that, subsequent to the incident, he had arrested appellant for weapons offenses and that appellant was "very hostile, very verbally aggressive." The record shows that Trevino's testimony was not based on mere personal knowledge of appellant's specific acts, but on Trevino's work in the community and on discussions with other police officers regarding what they knew of appellant's reputation. Accordingly, we conclude that the trial court did not abuse its discretion in admitting Trevino's reputation testimony. We resolve appellant's fourth issue against him. V. CONCLUSION Having resolve appellant's four issues against him, we affirm the trial court's judgment.
We note that the abstract part of the charge also included an instruction on the conspiracy theory pursuant to section 7.02(b). See Tex. Pen. Code Ann. § 7.02(b) (Vernon 2003). However, the charge did not apply the conspiracy theory to the facts. Although ppellant makes no argument on appeal as to the application part of the charge, we do not consider a conspiracy theory of parties in our analysis.