No. 05-09-01536-CR
Opinion Filed May 10, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.2.
On Appeal from the Criminal District Court No. 4 Dallas County, Texas, Trial Court Cause No. F-08-61845-K.
Before Justices RICHTER, LANG, and FILLMORE.
Opinion By Justice LANG.
Following a plea of not guilty, appellant Alberto Adam DeLeon was convicted by a jury of murder. Punishment was assessed by the jury at twenty-eight years' imprisonment. In two issues on appeal, appellant contends the evidence is legally and factually insufficient to support his conviction for murder. We affirm the trial court's judgment. Because all dispositive issues are well settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged by indictment with "intentionally and knowingly" causing the death of Ray Villaseñor. At trial, Jared Saucedo testified that during the afternoon on October 13, 2008, he was standing outside of his house on Ash Lane in East Dallas with his friends Villaseñor, David Martinez, Luis Almaguer, and Arthur Ramirez. Saucedo saw appellant drive by in a brown Monte Carlo with appellant's younger brother, Robert DeLeon ("R. DeLeon"), in the front passenger seat. Saucedo testified appellant and R. DeLeon were looking at him and his friends and "throwing gang signs out the window." Then, Saucedo saw R. DeLeon wave a black gun in the air. About five minutes later, appellant and R. DeLeon drove by again from the opposite direction. At that time, appellant had "his hand out the window flashing money" at Saucedo and his friends. Saucedo testified he and his friends did not say anything to appellant and R. DeLeon. According to Saucedo, about ten minutes later, he, Villaseñor, Martinez, Almaguer, Ramirez, and Ramirez's son, who was two years old, got into Ramirez's Blazer truck to go pick up a movie. Ramirez drove and Martinez sat in the front passenger seat. Almaguer sat in the back seat behind Ramirez. Saucedo was behind the front passenger seat, and Villaseñor sat in the middle of the back seat with Ramirez's son on his lap. As they were driving on Ash Lane, Saucedo saw the Monte Carlo on the opposite side of the street, driving toward the Blazer and swerving from side to side. The Monte Carlo and the Blazer collided. Saucedo testified the Monte Carlo "somehow spun, and the driver's side was facing the back of the truck." Saucedo stated that less than five seconds after the vehicles collided, he heard four or five gunshots. According to Saucedo, Almaguer told them he had been shot. Saucedo testified the Blazer turned onto Beacon Street, and he then realized Villaseñor also had been shot. Almaguer was shot in the side, and Villaseñor was shot in the back of the head. Ramirez drove to the hospital, where Villaseñor later died. On cross-examination, Saucedo testified he is not a gang member. Saucedo testified that prior to the incident at issue, he heard about an altercation at the home of appellant's grandparents at 1419 Fairview. Saucedo stated he had never been to that address. Ramirez testified he was at Saucedo's house on the date of the shooting with his brother David Martinez and the others named above. He testified a brown Monte Carlo passed by and the man in the passenger seat flashed a black gun. Ramirez stated he "flipped them off," then decided to leave. He testified that he, his son, Martinez, Saucedo, Villaseñor, and Almaguer were in his Blazer driving toward Beacon Street when he saw the Monte Carlo coming toward them on the opposite side of the street. The Monte Carlo was swerving. Ramirez testified he ran a stop sign because "there's a gun in their car, and I got my son with me." The Blazer "tipped" the back of the Monte Carlo, which "went like sideways." Ramirez testified that within a few seconds of the collision, he heard a "pop," and he then accelerated. He stated he heard Martinez say Villaseñor had been shot, so he drove to the hospital. Ramirez testified he did not intend to hit the Monte Carlo. On cross-examination, Ramirez testified he used to be in the East Side Homeboys gang, but got out when his son was born. He had seen R. DeLeon prior to the incident at issue, but did not know him. He had never seen appellant before the incident at issue. Ramirez testified he had never been to 1419 Fairview. Martinez testified that prior to the incident at issue, he knew appellant because they lived in the same neighborhood and had gone to the same school. He testified that on the date of the shooting, he saw appellant drive past Saucedo's house and throw "La Barrio" gang signs. He stated he "cussed" at appellant. About five minutes later, he was riding in Ramirez's truck and saw the Monte Carlo swerving as it came toward them. According to Martinez, the Monte Carlo "cut in front" of them and they "clipped it." Then, he heard gunshots. Martinez testified the vehicles would not have collided if the Monte Carlo had not been swerving. Martinez testified he knew where appellant's grandparents live. He stated that about three months before the shooting at issue, he had gone to a park across the street from that address to "confront" appellant because appellant and his relatives had "messed with" Martinez's little brother Sammy. Martinez testified that about five people came from the porch of appellant's grandparents' house and approached him. He began fighting with one of those people. Then, he heard gunshots coming from the corner of the park, so he jumped in his car and left. He testified he has not otherwise been to 1419 Fairview. Martinez stated he did not have a gun with him when he went to "confront" appellant or on the date of the shooting. He testified he does not own a gun. On cross-examination, Martinez stated he is not in a gang. Almaguer testified he was at Saucedo's house on the date of the shooting and saw appellant and R. DeLeon pass by twice in the Monte Carlo. The second time, "they were flashing money." Almaguer did not see a gun. Later, while riding in Ramirez's Blazer, Almaguer felt the collision with the Monte Carlo. He did not hear any gun shots and was not aware at first that he had been shot. He testified no one got out of the Blazer after the collision. Ramirez drove straight to the hospital. On cross-examination, Almaguer testified he is not a member of a gang and never has been. He stated he has never been to the home of appellant's grandparents. Adrian Moreno testified that on October 13, 2008, he was at the corner of Parkview and Ash Lane to pick up his kids from a friend's house. As he exited his vehicle and walked up the sidewalk, he saw a Blazer and a car going in opposite directions on Ash Lane. The driver of the car was "kind of like swerving or something." Moreno testified the two vehicles collided "as they were crossing each other." According to Moreno, the Blazer hit the car and "spun it all around." Moreno immediately ran to the corner to see the accident. Moreno testified the driver of the car "reached around" and "fired at the [Blazer]." The driver of the car fired "more than five or six" shots. Moreno stated the vehicles were about 60 to 100 feet apart. He did not see anyone exit the Blazer. Moreno testified he did not know any of the persons in the two vehicles. R. DeLeon testified that in July 2008 he was outside his grandparents' house during a family get-together. A group that included Martinez, his brother Sammy, and several others passed by the house a few times, then stopped. A fight ensued between R. DeLeon's cousins and the group that had stopped at the house. R. DeLeon testified his grandfather tried to stop the fight, but was not successful. Finally, the group that had stopped at the house left. R. DeLeon testified that about a week later, Martinez and several others came to his grandparents' house during a cookout. R. DeLeon stated that Martinez and the others jumped out of their car "with crowbars and 2x4's." According to R. DeLeon, the group cursed at his grandfather. Then, they started beating R. DeLeon. R. DeLeon testified that subsequently, "around August," the same group came back to his grandparents' house. R. DeLeon went to a car to grab his gun, and the group left. In August or early September, R. DeLeon and appellant encountered Martinez "and them" at a convenience store in East Dallas. R. DeLeon reached under the seat of the car he was riding in to grab his gun, and Martinez and the others "took off again." R. DeLeon testified that on the date of the shooting at issue, he was riding in the front passenger seat of appellant's Monte Carlo. While driving toward their cousin's house after a trip to the store, he and appellant saw Martinez "and the other dudes" outside of a house on Ash Lane. R. DeLeon testified Martinez, Ramirez, and a few others started throwing "East Side" gang signs and yelling loud names. R. DeLeon stated he "barely pulled out the gun" to "make them back off like they usually do." About twenty-five or thirty minutes later, R. DeLeon and appellant drove back to that street because R. DeLeon wanted to talk to a girl who lived nearby. They saw the Blazer coming toward them. As the vehicles passed each other, R. DeLeon felt the vehicles collide. The Monte Carlo slid, then stopped. Then, R. DeLeon testified, appellant reached under the seat for the gun and started shooting "over his shoulder." On cross-examination, R. DeLeon testified neither he nor appellant is in the Barrio gang. R. DeLeon stated appellant was not swerving at the time the Monte Carlo passed the Blazer. According to R. DeLeon, appellant was "firing in the air" when he shot the gun. R. DeLeon did not recall appellant pointing the gun at the Blazer. He stated he had never seen or met Villaseñor. Appellant testified he is twenty years old. He stated that on the afternoon at issue, he was "just driving around" East Dallas in his Monte Carlo with his brother, R. DeLeon. Appellant stated he "hangs out" in that area a lot because his grandparents live in that area. While going to get something to eat, appellant and his brother were driving on Ash Lane. Appellant saw Martinez, Saucedo, and Ramirez, all of whom he knew, near a house on Ash Lane. He did not know Saucedo lived at the house. Appellant testified he did not acknowledge the group of men. About fifteen or twenty minutes later, appellant drove back toward that location because his brother wanted to talk to a girl who lived nearby. The men he had seen outside Saucedo's house were gone. A "little while later," he saw a Blazer coming toward him fast. After the Blazer passed his car, the vehicles collided and his car "went diagonal." Appellant testified he saw the Blazer stop. He stated he saw there were "a lot of people" in the Blazer, but the only one he recognized at that time was Martinez. Appellant stated he grabbed his gun with his right hand, put it over his left shoulder, put it out the window, and started shooting. His left hand remained on the steering wheel. Appellant testified he did not know what he was aiming at. He stated, "I was shooting this way towards their way, but not knowing where I was shooting." The gun was an "automatic." Appellant testified he does not know how many shots he fired. Then, appellant tried to drive away, but his tire was "all messed up." He parked his car on the next block and he and his brother walked to a nearby store, where they used a phone to call a friend to come pick them up. Appellant testified that at that time, he did not know anyone had been hurt. He stated he didn't think anyone had been shot because he "wasn't aiming" at the Blazer. He was afraid the men in the Blazer would come back, so he waited inside the store. After their friend arrived, appellant and his brother went back to the Monte Carlo to retrieve appellant's cell phone. Then, they went to get something to eat and went to a friend's house. Later that same day, appellant was told by a friend that someone had been killed in the shooting. Appellant was scared and went to his aunt's house. The next day, he left for Laredo, Texas. A few weeks later, he returned to Dallas and went to the police to turn himself in. Appellant testified he did not know Villaseñor. He stated he was aware that R. Deleon and Martinez's younger brother Sammy had fought in the past, but he had "no problem against" Martinez. Appellant testified he was at his grandparents' house when Martinez "went there to confront or whatever," but he was "not a party to that." Appellant testified he fired his gun when he saw the Blazer stop because he didn't know what the men in Blazer were going to do to them. He stated, "It was a warning shot, just to scare them off." He testified he did not intend to kill or hurt anyone. On cross-examination, appellant testified he did not remember seeing his brother flash the gun as they drove by Saucedo's house. He testified he was on his cell phone at that time. He stated he had been swerving his car "[w]ay before the accident," but was not swerving when he passed the Blazer. Appellant stated he belonged to the East Side Homeboys gang in high school. He testified he is not a member of the Barrio gang and does not believe his brother is a member of that gang. In addition to the testimony described above, (1) several relatives of appellant testified respecting details of altercations at the home of appellant's grandparents and (2) several law enforcement officers and a medical examiner testified regarding details of the investigation that followed the shooting at issue. In the charge of the court, the jury was instructed, in part, that the law provides (1) a person commits the offense of murder if he "intentionally or knowingly causes the death of an individual" and (2) a firearm is a "deadly weapon." Further, the jury was instructed [I]f you find from the evidence beyond a reasonable doubt that on or about the 13th day of OCTOBER, 2008, in Dallas County, Texas, the defendant ALBERTO ADAM DELEON, did unlawfully knowingly or intentionally cause the death of RAY VILLASENOR an individual, by shooting him with a FIREARM, a deadly weapon, as alleged in the indictment, then you will find the defendant, ALBERTO ADAM DELEON, guilty of MURDER. (emphasis original). Following the jury's verdict and assessment of punishment and the trial court's judgment in accordance therewith, this appeal was timely filed. II. SUFFICIENCY OF THE EVIDENCE A. Standard of Review
In Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.), the Texas Court of Criminal Appeals overruled Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and concluded the Jackson v. Virginia standard is the only standard a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95. Under that standard, we examine 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 the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks, 323 S.W.3d at 899. We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Brooks, 323 S.W.3d at 899. B. Applicable Law
A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. Tex. Penal Code Ann. § 19.02(b)(1) (West 2003). A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result. Id. § 6.03(a). A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). C. Application of Law to Facts
Appellant asserts he was "charged with a knowing and intentional murder." Appellant contends that "[i]n order to have convicted Appellant of murder, the jury would have had to find that Appellant's conscious objective or desire was to cause the death of Villaseñor." According to appellant, the record in this case establishes he "lacked the mens rea to commit a knowing and intentional homicide" because he "did not intend the result of his conduct, i.e., Villaseñor's death." As a result, appellant contends, the evidence is "legally insufficient or, in the alternative, factually insufficient" to support his conviction for murder. The State responds that the evidence is sufficient to prove appellant intentionally or knowingly caused Villaseñor's death. The State asserts appellant opened fire on a vehicle he knew to be occupied by several people. According to the State, "[a] rational jury could have found beyond a reasonable doubt that appellant had the specific intent to kill or was at least aware that his actions were reasonably certain to result in death." As described above, the jury was instructed, in part, to find appellant guilty of murder if he "knowingly or intentionally" caused the death of Villaseñor. (emphasis added). To the extent appellant argues that instruction was erroneous because the indictment charged appellant with "knowingly and intentionally" causing Villaseñor's death, the case law does not support that position. See Zanghetti v. State, 618 S.W.2d 383, 387-88 (Tex. Crim. App. 1981) (where statute requires one of several mental states, jury properly may be charged in the disjunctive even when indictment or information is alleged in the conjunctive). Moreover, we cannot conclude the evidence is insufficient to support a finding that appellant acted both intentionally and knowingly. The record shows appellant stated he didn't intend to kill anyone and "wasn't aiming" at the Blazer. However, he also testified that after the Blazer had stopped, he fired "towards their way, but not knowing where I was shooting." Appellant stated he had seen that there were "a lot of people" in the Blazer. Moreno testified (1) the driver of the Monte Carlo "fired at the [Blazer]" and (2) the two vehicles were about 60 to 100 feet apart at the time of the shooting. As stated by appellant in his appellate brief, "a jury can infer intent to cause death or serious bodily injury from use of a deadly weapon in a deadly manner." See Godsey v. State, 719 S.W.2d 578, 580-81 (Tex. Crim. App. 1986) ("The specific intent to kill may be inferred from the use of a deadly weapon, unless in the manner of its use it is reasonably apparent that death or serious bodily injury could not result."). Further, "[i]f a deadly weapon is used in a deadly manner, the inference is almost conclusive that [the defendant] intended to kill." Id. at 581; accord Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993); see also Tex. Penal Code Ann. § 1.07(a)(17)(A) (West Supp. 2010) ("deadly weapon" defined to include firearm). Appellant contends that "[t]o apply that inference in the case at bar . . . would be to ignore the uncontroverted testimony that Appellant did not intend to shoot anyone." However, the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Brooks, 323 S.W.3d at 899. On this record, we cannot conclude it was "reasonably apparent that death or serious bodily injury could not result" from the manner of appellant's use of a deadly weapon. See Godsey, 719 S.W.2d at 580-81; Vuong v. State, 830 S.W.2d 929, 934 (Tex. Crim. App. 1992) (concluding evidence was sufficient to prove intent to kill where defendant fired semi-automatic weapon in tavern filled with patrons, despite defendant's testimony that he was thinking irrationally as a result of earlier threats by certain gang members and his intent was only to "scare" persons who had threatened him); Washington v. State, No. 05-08-01133-CR, 2010 WL 818656, at *3 (Tex. App.-Dallas Mar. 11, 2010, no pet.) (not designated for publication) (concluding evidence was sufficient to show intent to kill where defendant fired gun toward back seat area of moving car occupied by two persons sitting in front seats). Accordingly, we conclude a rational jury could have found beyond a reasonable doubt that appellant acted intentionally in causing the death of Villaseñor. See Tex. Penal Code Ann. § 6.03(a). Alternatively, the penal code provides that a person commits the offense of murder if he "knowingly" causes the death of an individual. Id. § 6.03(b). On this record, we conclude a rational jury could have found beyond a reasonable doubt that appellant, while not intending to cause the death of any individual, was aware that his conduct of firing a gun pointed toward a vehicle in which there were "a lot of people" was reasonably certain to result in a death. See Medina v. State, 7 S.W.3d 633, 636 (Tex. Crim. App. 1999) (concluding evidence was sufficient to prove defendant acted "knowingly" in committing murder, where defendant fired gun into crowd in front yard of home, killing two persons); Rojas v. State, 171 S.W.3d 442, 447 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd) (concluding evidence supported inference that defendant knew that shooting a gun in the general direction of a group of people was reasonably certain to result in a death). We decide against appellant on his two issues. III. CONCLUSION
Applying the appropriate standard of review, we conclude the evidence is sufficient to support appellant's conviction for murder. We decide appellant's two issues against him. The trial court's judgment is affirmed.