No. 14-08-00047-CR
Memorandum Opinion filed March 31, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 263rd District Court, Harris County, Texas, Trial Court Cause No. 1080742.
LESLIE B. YATES, Justice.
Appellant Edward Benjamin Baker appeals his conviction for murder. In three issues, appellant challenges the sufficiency of the evidence and the inclusion of an instruction on the law of parties in the jury charge. We affirm.
I. Background
On the evening of the complainant Larry Savala's death, appellant went to a nightclub with his brother Marky and Richard Sosa. While they were in the nightclub, a fight broke out between the three men and a group of African-American men. Security guards broke up the fight and removed appellant, Marky, and Sosa from the nightclub. The fight resumed in the parking lot in front of the nightclub, and Sosa was "knocked out" by one of the African-American men. Appellant then retrieved a gun from the group's car and the African-American man fled back toward the front of the club, where the complainant and others were standing. Appellant fired a series of shots, and the complainant was killed. Although accounts differed as to whether appellant first fired into the air, several witnesses saw appellant shoot toward the front of the club. Although those witnesses did not see the complainant fall, one witness saw appellant shoot toward the same area where that witness later found the complainant's body, and another witness saw appellant shoot towards the area where the complainant was standing. Security Guard Francisco Bonilla testified that he saw the complainant fall. He further testified that although he had a clear line of sight to appellant, he never saw appellant shoot into the air. He watched appellant fire multiple shots towards the club, in the direction of the complainant, and at approximately the height of a man. As appellant shot in the complainant's direction, the complainant fell "like he was already gone" and did not move or cry out for help. While Bonilla believed appellant shot the complainant, he was uncertain as to whether the bullets fired by appellant actually struck the complainant. Bonilla gave a sworn statement to a Spanish-speaking officer who transcribed it into English and read it back to Bonilla in Spanish for accuracy. In Bonilla's sworn statement and in his trial testimony, he described seeing Marky "snatch" or "take" the gun away from appellant. In both accounts, Bonilla claimed Marky approached the fallen complainant and pointed the gun at him, at which point Bonilla drew his pistol and told Marky to stop. In his sworn statement, Bonilla stated that he saw Marky shoot the complainant at that point. But at trial, Bonilla testified that his prior statement was erroneously translated, and that after he told Marky to stop, Bonilla took cover and heard a shot but did not see where it was directed. Bonilla acknowledged, however, that his memory of the incident might have been better when he gave the sworn statement. Homicide Detective Millard Waters read Sosa's sworn statement into evidence, in which Sosa recounted a phone conversation with appellant approximately fifteen minutes after the shooting. Sosa stated that appellant claimed to have shot "the guy at the club" and that Marky could be heard in the background telling appellant "you shot the wrong guy, that was a Mexican guy laying on the ground" and "that's the first guy you ever shot." Deputy Chief Medical Examiner Dr. Dwayne Wolf testified that the complainant sustained two gunshot wounds, one to the head and the other to the neck, both of which traveled through the complainant's body from right to left and either of which was capable of killing him. Dr. Wolf acknowledged that if the complainant was shot at two different times, both wounds would have had to have been created by bullets traveling at the same angle and trajectory. In its charge, the court instructed the jury that it could find appellant guilty of murder as a principal (under the theory of transferred intent) or as a party. The jury returned a general guilty verdict and the court assessed punishment at forty years' imprisonment. Appellant challenges the sufficiency of the evidence and contends that the trial court erred in instructing the jury on the law of parties. II. Legal and Factual Sufficiency
In his second and third issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). The jury, as the trier of fact, "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App. 1999). The jury may choose to believe or disbelieve any portion of the testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). The jury may also draw reasonable inferences from basic facts to ultimate facts. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App. 1993). In evaluating the factual sufficiency of the evidence, we view all the evidence in a neutral light and will set aside the verdict only if we are able to say, with some objective basis in the record, that the conviction is clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 414-17 (Tex.Crim.App. 2006). We cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict, and we do not intrude upon the fact-finder's role as the sole judge of the weight and credibility of witness testimony. See id. at 417; Fuentes, 991 S.W.2d at 271. The fact-finder may choose to believe all, some, or none of the testimony presented. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991); In re A.B., 133 S.W.3d 869, 872 (Tex.App.-Dallas 2004, no pet.). In our review, we discuss the evidence that, according to appellant, undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). The standard of review is the same for both direct and circumstantial evidence. See Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999). Indeed, circumstantial evidence alone may be sufficient to support a finding of guilt. Id. The charge authorized the jury to convict appellant of murder either as a principal or as a party. We will uphold the jury's general guilty verdict if the evidence is sufficient to support a finding of guilt under either of the theories submitted. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). Appellant contends the evidence shows that it was actually Markey who shot the complainant. As appellant points out, no witnesses could testify that they actually saw the bullets fired by appellant hit the complainant. But the trial testimony shows appellant shot multiple times at head level in the same direction where the African-American man fled and where the complainant and others were standing. Bonilla testified that he believed appellant shot the complainant. According to Bonilla, when appellant shot in the complainant's direction, the complainant fell like "he was already gone" and did not move or cry for help. Further, the medical examiner testified that either of the complainant's wounds could have resulted in his death, and those wounds were inflicted by bullets traveling along the same angle and trajectory. Finally, Sosa's statement that appellant admitted shooting the complainant was read to the jury. The jury was free to infer from the evidence that appellant shot at the fleeing man with the intent to kill or seriously injure him, missed, and hit and killed the complainant instead. See Clewis, 922 S.W.2d at 133 (jury may draw reasonable inferences from basic facts to ultimate facts); Adanandus v. State, 866 S.W.2d 210, 215 (Tex.Crim.App. 1993) (a firearm is a deadly weapon; intent to kill may be inferred when a defendant uses a deadly weapon in a deadly manner); Godsey v. State, 719 S.W.2d 578, 580-81 (Tex.Crim.App. 1986) (holding specific intent to kill may be inferred where defendant used firearm and fired or attempted to fire at a person). Appellant points to conflicting evidence as to whether Marky shot the complainant. Bonilla testified at trial that he only heard Marky shoot but did not see where he directed the shot, contradicting his prior sworn statement that he actually watched Marky shoot the complainant. The jury was free to believe Bonilla's trial testimony over his previous statement to police, see Chambers, 805 S.W.2d at 461; Sharp, 707 S.W.2d at 614, and to infer from that and the medical examiner's testimony that Marky did not shoot the complainant. See Clewis, 922 S.W.2d at 133. The inconsistency goes to Bonilla's credibility, and the jury is the sole judge of that issue. See Fuentes, 991 S.W.2d at 271. Alternatively, because Bonilla testified that Marky only shot once, even if the jury believed that Marky shot the complainant, the jury was free to infer that appellant had already shot the complainant at that time in light of (1) evidence that multiple shots were fired, (2) Sosa's statement that appellant admitted shooting "the guy at the club," (3) Bonilla's testimony that after appellant shot in the direction of the complainant, he fell like he was "already gone," and (4) the medical examiner's testimony that the complainant was shot twice and both wounds were capable of killing him. See Clewis, 922 S.W.2d at 133. For purposes of our legal sufficiency review, we have reviewed the evidence in the light most favorable to the verdict, and conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant murdered the complainant through transferred intent. Salinas, 163 S.W.3d at 737. For purposes of our factual sufficiency review, we have reviewed the evidence in a neutral light, and find no objective basis in the record for saying that the jury's verdict was clearly wrong or manifestly unjust because it was contradicted by the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-17. Rather, the circumstantial evidence discussed above was sufficient to support the verdict under the transferred intent theory, see Kutzner, 994 S.W.2d at 184, and the contrary evidence did not render that evidence factually insufficient under the applicable standard of review. Because we hold that the evidence is legally and factually sufficient to support appellant's conviction as a principal, we need not determine whether the evidence was legally or factually sufficient to support a verdict under a party theory. See Guevara, 152 S.W.3d at 49; Alvarado, 912 S.W.2d 199, 225 (Tex.Crim.App. 1995). We therefore overrule appellant's second and third issues. III. Jury Charge Error
In his first issue, appellant contends that the trial court erred in charging the jury on the law of parties. In general, an instruction on the law of parties is appropriate where there is evidence to support a jury verdict on that theory. See Ladd v. State, 3 S.W.3d 547, 564 (Tex.Crim.App. 1999) (citing McCuin v. State, 505 S.W.2d 827, 830 (Tex.Crim.App. 1974)). If the charge is given erroneously and is objected to (as it was here), the error requires reversal unless it is harmless, i.e. upon a showing of "some harm." Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (en banc) (op. on reh'g); Bargas v. State, 252 S.W.3d 876, 899 (Tex.App.-Houston [14th Dist.] 2008, no pet.). Even where proper objection is made at trial, when the jury was charged under alternative theories, no harm is shown where (1) the evidence clearly supports the defendant's guilt under an alternate theory unaffected by the erroneous portion of the charge, (2) it is very likely the jury's verdict was based on an alternate theory, and (3) the State relies most heavily on one or more alternate theories rather than the erroneous theory. See Rivera v. State, 12 S.W.3d 572, 577 (Tex.App.-San Antonio 2000, no pet.); see also Cathey v. State, 992 S.W.2d 460, 466 (Tex.Crim.App. 1999) (no harm where verdict based on parties theory would have been irrational under the evidence); Payne v. State, 194 S.W.3d 689, 698-99 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd) (where evidence clearly supported guilt as party and State relied on that theory, any error in charging under principal theory was harmless); Black v. State, 739 S.W.2d 638, 642-43 (Tex.App.-Dallas 1987, no pet.) (although prosecutor referred to law of parties in voir dire and closing, any error in charging jury on law of parties was harmless, where State's argument focused on defendant's guilt as a principal and evidence was sufficient to convict defendant under that theory). Assuming, without deciding, that the charge was erroneous, we have already determined that the evidence was sufficient to convict appellant as a principal. Sosa's sworn statement, eyewitness testimony regarding appellant's actions, and the medical evidence all clearly support the jury's verdict under that theory. Furthermore, if we accept appellant's claim that the evidence does not reflect that he assisted Marky in any way, then the jury almost certainly did not rely upon the parties instruction in arriving at its verdict, but rather based the verdict on the evidence tending to show appellant's guilt under the theory of transferred intent. See Ladd, 3 S.W.3d at 564-65; Cathey, 992 S.W.2d at 466. But even if there is some evidence that appellant acted as a party, the State placed little reliance on the parties theory. The State did not rely on it during opening statements, nor did the State specifically examine the witnesses in that regard. Although the State discussed the law of parties in closing arguments in response to appellant's defensive theory that Marky shot the complainant, the State also argued in closing that a guilty verdict under the law of parties would be in complete disregard of the evidence and that neither prosecutor believed that the evidence supported Marky's having shot the complainant. It seems unlikely that the jury would convict appellant on the parties theory in light of such an argument by the State. See Payne, 194 S.W.3d at 698-99; Black, 739 S.W.2d at 642-43. Having reviewed the record, we find no harm in any error the trial court may have committed by charging the jury on the law of parties. Appellant's first issue is overruled. Having overruled all of appellant's issues, we affirm the trial court's judgment.