Nos. 14-07-00479-CR, 14-07-00480-CR, 14-07-00481-CR
Opinion filed August 26, 2008. DO NOT PUBLISH — Tex. R. App. P. 47.2(b).
On Appeal from the 185th District Court, Harris County, Texas, Trial Court Cause Nos. 1066188, 1066187, 1066186.
Panel consists of Justices YATES, ANDERSON and BROWN.
JOHN S. ANDERSON, Justice.
A jury convicted appellant, Carlos Vela Trevino, of three counts of attempted capital murder and sentenced him to life imprisonment in the Texas Department of Criminal Justice, Institutional Division on each count. See Tex. Penal Code Ann. §§ 15.01(a), 19.02(b)(1) (Vernon 2003), 19.03(a)(1) (Vernon Supp. 2007). Appellant's sentences are to run concurrently. In six points of error, appellant argues the evidence is legally and factually insufficient to support each conviction because the State failed to prove the requisite mens rea for attempted capital murder. We affirm.
Appellant's points of error one, two, and three address whether the evidence was legally sufficient for each conviction. Appellant's points of error four, five, and six address whether the evidence was factually sufficient for each conviction. Thus, we will consolidate appellant's six issues into two points of error.
FACTUAL AND PROCEDURAL BACKGROUND
On April 22, 2006, Loyce Hunter, appellant's neighbor, heard someone fire a gunshot from appellant's house. Loyce was concerned for the safety of appellant's wife and children because appellant had fired his gun in the past, so Loyce called the police department. A police officer arrived approximately five minutes after Loyce's call. Loyce's husband, Gerald Hunter, left earlier that morning to get breakfast, and as he arrived home, he saw the police car and noticed an officer attempting to make contact with someone in appellant's house. Shortly thereafter, appellant's wife and children exited the house, but appellant did not. Several other officers arrived on the scene to assist, and on multiple occasions, Officer Edwin LaCourt attempted to contact appellant through a loudspeaker. Officer LaCourt spoke to appellant in Spanish. In addition, Officer LaCourt allowed appellant's wife and brother to use the loudspeaker in an attempt to convince appellant to come out of the house. Despite these attempts, appellant refused to exit the house. Appellant's brother also asked Officer LaCourt if he could enter the house and speak with appellant; however, for safety reasons, Officer LaCourt would not allow appellant's brother to enter. Approximately one hour later, three officers from the Houston Police Department Canine Unit decided to sweep and clear appellant's house. Prior to entering the house, the officers made announcements in both English and Spanish requesting appellant to identify himself and surrender. Officer Robert Mason and his canine, Baro, led the team. Officer Andrew Porras went in second and was in charge of handling the assault rifle. Officer Landrum Gay went in last, carrying a sidearm weapon and a canine snare, in case any loose animals were in the house. Before entering each room, the officers again made announcements asking appellant to surrender. As the officers approached the last bedroom, they noticed the bedroom door was closed but the bedroom light was illuminated. The officers made a final announcement in both English and Spanish, and then Officer Gay kicked the bedroom door open. Officer Gay performed an initial sweep of the bedroom and then retreated into the hallway to stand as backup with Officer Porras. Next, Officer Mason and Baro entered the room. Immediately upon entering the room, Baro indicated the presence of a strong human odor. Officer Mason first cleared the closet, and then heard Officer Porras shout that a shoe was sticking out from under the bed. Officer Mason approached the bed and attempted to pick up the mattress and box spring. However, as Officer Mason lifted up the bed, appellant discharged his gun. Officer Mason immediately dropped the bed, retrieved his gun, discharged his gun several times, and then retreated. After Officer Mason retreated, Officer Porras stepped into the bedroom and began firing his weapon. During the exchange of gunfire between Officer Porras and appellant, a bullet struck Officer Porras in the knee. Officer Porras dropped to his knee, indicated to the other officers he had been hit, and continued to fire in the direction of the bed. At that point, Officer Gay stepped into the bedroom to engage the shooter so Officer Porras could retreat. Officer Gay noticed someone attempting to rise up from under the bed, so he discharged his weapon in the direction of the bed allowing Officer Porras a chance to retreat. According to Officer Gay, he emptied his first round of ammunition and reloaded his weapon; as he stepped back into the room, appellant shot at him again. Eventually, Officer Gay retreated and helped Officer Porras exit the house. Shortly after the three officers exited appellant's house, Officer Mason heard a loud crash off to the side and noticed appellant jumping out of the window. Officer Mason immediately released Baro and instructed him to attack appellant. Baro caught appellant; however, appellant continued to struggle and fight with Baro. Officer Mason and several other officers ran to assist Baro. The officers were concerned appellant might still have a weapon, so they instructed appellant to show his hands. Appellant refused to comply with the officers' commands, so Officer Gay used his taser on appellant. Appellant eventually showed his hands, and Officer LaCourt placed appellant in handcuffs. An officer then performed a quick pat down of appellant and did not find a weapon. Still concerned appellant might have a weapon, Officer Jim Adkins of the Houston Police Department pulled out his knife and cut appellant's clothes off of him. Officer Adkins did not find a weapon on appellant. The Houston Fire Department subsequently treated appellant for multiple injuries, including gunshot wounds, sustained during the encounter. Appellant was then taken into custody for the attempted capital murder of Officers Gay, Porras, and Mason. The following day, Officer H.A. Chavez, a Houston Police Department investigator, interviewed appellant at Ben Taub Hospital, where appellant was being held in custody while recovering from his injuries. Officer Chavez taped appellant's interview and spoke to appellant in Spanish, which was later translated into a written transcript in English. During the interview, appellant claimed his wife approached him around 9:00 that morning and informed him she was leaving. According to appellant, he asked her not to leave, but he never threatened her or shot at her. However, according to appellant, during their discussion, his wife called the police. Appellant explained he had a .38 caliber revolver in his car, and when the police arrived at his house, he grabbed the gun and ran inside his house in order to hide the gun. Appellant then hid between the mattress and the box spring of his daughter's bed for approximately one hour. According to appellant, he did not hear the police, his wife, or his brother try to communicate with him over the loudspeaker; however, appellant admitted he did hear the police make an announcement before entering the house and before entering the bedroom. Appellant knew the police were sweeping the house, but he did not have a reason why he refused to identify himself or surrender. Officer Chavez next asked appellant what happened when the officers went into the bedroom, and appellant responded, "I fired the pistol outward." According to appellant, he fired his pistol "until it didn't pop any more." However, appellant later explained to Officer Chavez he did not fire toward the officers, but instead fired the pistol upward. In addition, appellant claimed he was unaware a bullet hit Officer Porras. Appellant went on to explain that after the officers left his house, he got out from under the bed and jumped out of a window. According to appellant, after jumping out of the window, an officer's dog knocked him to the ground. Appellant claimed he did not resist the dog or the officers, but the officers still kicked him, hit him, and pulled on him. Finally, Officer Chavez asked appellant what his intentions were that day, and appellant responded, "I wanted them to kill me . . . [b]ut I didn't shoot over them, I just shot upward." The State introduced both the tape and the written transcript into evidence during the trial. During trial, Gerald, appellant's neighbor, testified appellant's wife worked as his house cleaner and had recently discussed her plans to leave appellant. Gerald also testified appellant owned a .38 caliber revolver with a rubber band wrapped around the trigger spring. According to Gerald, appellant previously had shown him the gun. Gerald testified after the three officers went into appellant's house, he heard two shots from what sounded like a pistol, and then he heard an array of gunfire. Gerald testified he was familiar with guns, and in his opinion, the sound from the first two shots fired was consistent with a .38 caliber revolver. Gerald also testified when appellant's wife heard the gunfire, she immediately began running toward the house, but the police stopped her. On cross-examination, Gerald testified he thought two of the officers were carrying long rifles, but he admitted he did not know whether they were also carrying pistols. Loyce, Gerald's wife, testified she heard a gunshot from appellant's house that morning and called the police. However, on cross-examination, Loyce admitted she never saw appellant fire his weapon. Sergeant Glen West of the Houston Police Department testified he arrived on the scene around 11:40 a.m. Sergeant West testified he videotaped the scene in order to document the evidence and his partner, Officer Mike Perez, photographed the scene. According to Sergeant West, he found extensive firearm evidence at the scene, and he recovered a .38 caliber revolver with a rubber band wrapped around the trigger guard underneath the mattress in the bedroom where the encounter occurred. Sergeant West testified all five bullets in the revolver had been fired; however, he also testified no latent prints were found on the weapon. Sergeant West testified he found damage to the inside of the bedroom door and to the door frame of the closet door. Sergeant West also testified he found a fired bullet lodged in the door frame of the closet. In addition, Sergeant West testified he found dark markings on both the box spring and mattress, which appeared to be residue from a fired weapon. According to Sergeant West, the room in which the incident occurred was a ten-foot-six-inch by ten-foot-six-inch room. Officer LaCourt testified he arrived on the scene around 9:14 a.m. According to Officer LaCourt, he made multiple attempts to contact appellant. Officer LaCourt testified after the three officers entered appellant's home, he heard gunfire and shortly thereafter, he heard over the radio an officer had been shot. In addition, Officer LaCourt testified that after appellant jumped out of the window and Baro attacked him, Officer LaCourt may have put his foot on appellant to restrain him, but he did not recall kicking appellant. Furthermore, Officer LaCourt testified he never witnessed any other officer beat appellant. On cross-examination, Officer LaCourt admitted he never witnessed appellant discharge a weapon and never heard appellant make any threats. Sergeant Patrick LeBlanc, an investigator with the Houston Police Department Crime Scene Unit, testified he performed a scanning electron microscope test kit on one of Officer Mason's boots that he was wearing at the time of the incident. Sergeant LeBlanc explained the test kit was used to look for gunpowder residue. William Davis, a trace evidence manager with the Harris County Medical Examiner's Office, testified he performed the test on the kit collected by Sergeant LeBlanc and found the sampled surface was positive for gunshot residue. Davis testified the results were consistent with the officer's shoe being in the middle of a closed-room gunfight; however, on cross-examination, Davis admitted he could not determine whether the residue came from a particular gun. Officers Gay, Porras, and Mason all testified to the events that occurred in the house, as described above. In addition, Officer Gay testified, in his opinion, appellant tried to shoot them in the bedroom. He also testified he did not witness anyone kick or abuse appellant. Officer Porras testified he received a glancing blow to his knee, and the bullet that hit his knee came from the direction of the bed. Officer Mason testified he did not have gunpowder residue on his boot before entering appellant's house, and once he noticed the residue, he sent a sample of the residue from his boot in for testing. Jose Quintero, appellant's landlord, testified he examined the house approximately two to three weeks after the shooting and estimated there were approximately thirty bullet holes in the bedroom. Quintero also testified he examined the bedroom ceiling; however, he did not find any bullet holes in the ceiling. Lastly, Michael Lyons, a forensic scientist and firearms examiner with the Houston Police Department Firearms Lab, testified he reported to the scene around 12:50 p.m. and examined the weapons, casings, and fired bullets. According to Lyons, at least three of the fired bullets found were consistent with being fired from appellant's gun. In addition, Lyons testified a .38 caliber revolver should penetrate a mattress. For the defense, appellant first called his brother, Cesario Trevino. Trevino testified he informed the police he could bring appellant to them if they would allow him inside the house, but the officers would not let him go inside. Trevino also testified he witnessed an officer kick appellant. On cross-examination, Trevino admitted the police allowed him to talk to appellant through the loudspeaker; however, Trevino testified the loudspeaker was not very loud. Marina Galvan, appellant's sister, also testified the police would not allow her to go inside and speak with appellant. Furthermore, Galvan testified she could not hear the loudspeaker very well and she witnessed the police kicking appellant and ripping his clothes. Ultimately, a jury convicted appellant of three counts of attempted capital murder and sentenced him to life imprisonment in the Texas Department of Criminal Justice, Institutional Division on each count. This appeal followed. DISCUSSION
Appellant argues the evidence is legally and factually insufficient to support appellant's conviction for attempted capital murder because the State failed to prove appellant intentionally, with the specific intent to commit the offense of capital murder, shot at the complainants. According to appellant, his conduct was inconsistent with a specific intent to kill. We disagree with appellant. 1. Standard of Review
In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d. 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness's testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.App. 1998). The jury may reasonably infer facts from the evidence presented, credit the witnesses it chooses to, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). Reconciliation of conflicts in the evidence is within the jury's discretion, and such conflicts alone will not call for reversal if there is enough credible evidence to support a conviction. Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App. 1986). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). In a factual sufficiency review, we consider all the evidence in a neutral light. Prible v. State, 175 S.W.3d 724, 730-31 (Tex.Crim.App. 2005). The evidence may be factually insufficient in two ways. Id. at 731. First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust. Id. Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough the beyond a reasonable doubt standard could not have been met. Id. In conducting a factual sufficiency review, we must employ appropriate deference so we do not substitute our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). 2. Analysis Under the Texas Penal Code, 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). A person commits the offense of capital murder if the person commits murder as defined under section 19.02(b)(1) and the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman. Id. § 19.03(a)(1). A person commits the offense of criminal attempt if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. Id. § 15.01(a). Appellant's only argument on appeal is the evidence is legally and factually insufficient to show he had the specific intent to cause the death of the three officers; thus, according to appellant, at most, he can only be guilty of the offense of deadly conduct. A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Tex. Penal Code Ann. § 6.03(a) (Vernon 2003). Intent is a question of fact within the sole purview of the jury. See Brown v. State, 122 S.W.3d 794, 800 (Tex.Crim.App. 2003) ("[T]he defendant's state of mind is a question of fact that must be determined by the jury."). The jury can infer intent from other facts in the record. See Manrique v. State, 994 S.W.2d 640, 649 (Tex.Crim.App. 1999). Intent can be inferred from the circumstantial evidence surrounding an incident including the acts, words, and conduct of the accused. Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App. 1995). Additionally, the specific intent to kill may be inferred from the use of a deadly weapon, unless the manner of its use makes it reasonably apparent death or serious bodily injury could not have resulted. Godsey v. State, 719 S.W.2d 578, 580-81 (Tex.Crim.App. 1986). If a person used a deadly weapon in a deadly manner, the inference is almost conclusive the person intended to kill. Id. at 581. First, and foremost, the facts of this case show appellant used a deadly weapon in a deadly manner. Appellant does not deny shooting the gun; however, he attempts to argue he did not specifically aim at the officers but rather fired his gun toward the ceiling. Nevertheless, even if we accept appellant's argument, we must still conclude when appellant fired a gun in a small, enclosed area he used a deadly weapon in a manner that made it reasonably apparent death or serious bodily injury could have resulted. Thus, a specific intent to kill may be inferred. See Rojas v. State, 171 S.W.3d 442, 447 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd) (holding the evidence legally and factually sufficient to support the inference that appellant knew his shooting a gun in the general direction of a group of people, including the four-year-old victim, was reasonably certain to result in a death). Furthermore, we find the evidence presented was legally and factually sufficient for the jury to believe appellant did specifically aim and fire a deadly weapon at the officers, thus also allowing an inference of a specific intent to kill. See Godsey, 719 S.W.2d at 583 (holding in the context of capital murder, the defendant established a specific intent to kill when he slowly and deliberately pulled a loaded gun in direct violation of police instruction and thereafter moved it in such a way as to aim at the two officers, making his only remaining act to pull the trigger and hit the target). This evidence includes: (1) evidence a bullet struck Officer Porras in the knee; (2) Officer Porras's testimony the bullet that hit him came from the direction of the bed where appellant was hiding; (3) Officer Gay's testimony appellant tried to shoot them; (4) appellant's statement he knew the police were in the house and that he "fired the pistol outward"; (5) appellant's statement he fired the gun "until it didn't pop any more"; (6) Sergeant West's testimony regarding the damage to the inside of the bedroom door and door frame of the closet, and his testimony he found a fired bullet lodged in the door frame of the closet, all indicating bullets were fired in the officers' direction; (7) evidence of gunpowder residue found on Officer Mason's boot; and (8) Quintero's testimony there were no bullet holes in the bedroom ceiling. The evidence appellant claims allegedly undermines the jury's verdict includes: (1) no one testified appellant had the specific intent to kill the police officers; (2) no one testified appellant specifically aimed in the direction of the police officers; (3) appellant's statement to Officer Chavez he was aiming at the ceiling; (4) appellant's statement to Officer Chavez he was unaware Officer Porras was hit; and (5) the fact appellant did not have a gun when he exited the house. First, the fact there was no direct testimony that appellant had the specific intent to kill and no direct testimony appellant specifically aimed in the officers' direction is not determinative because intent can be inferred from the circumstantial evidence surrounding an incident. Patrick, 906 S.W.2d at 487. Furthermore, while some of appellant's statements to Officer Chavez may contradict a specific intent to aim directly at the officers, the jury may reasonably infer facts from the evidence presented, credit the witnesses it chooses to, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit. Sharp, 707 S.W.2d at 614. Reconciliation of conflicts in the evidence is within the jury's discretion, and such conflicts alone will not call for reversal if there is enough credible evidence to support a conviction. Losada, 721 S.W.2d at 309. After viewing the evidence in the light most favorable to the verdict, we hold any rational trier of fact could have found the essential elements of attempted capital murder, including a specific intent to kill, beyond a reasonable doubt. See Salinas, 163 S.W.3d at 737. Therefore, the evidence is legally sufficient to support appellant's convictions. In addition, viewing the evidence in a neutral light, we hold the evidence supporting the verdict is not so weak so as to conclude the verdict is clearly wrong and manifestly unjust; nor was the contrary evidence so strong the beyond a reasonable doubt standard could not have been met. See Prible, 175 S.W.3d at 730-31. Thus, the evidence is factually sufficient to support appellant's convictions. Accordingly, we overrule appellant's six issues on appeal. CONCLUSION
Having overruled all of appellant's issues, we affirm the trial court's judgment.