Opinion issued July 15, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-01250-CR
NO. 01-04-00738-CR
CHRISTOPHER BRYAN TORRES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 35411A
MEMORANDUM OPINION
A jury found appellant, Christopher Bryan Torres, guilty of two counts of capital murder and the trial court assessed punishment of confinement for life on each count. In two issues on appeal, appellant contends that the evidence was legally and factually insufficient to support his conviction.
We affirm.
BACKGROUND
On October 1, 2001, Fort Bend County Deputy L. Gage received a dispatch to investigate a reported explosion. As Gage approached the house at 10027 King Ranch, he saw an empty shotgun shell, blood, and a hole in the front door. As Gage entered the house, he heard groaning from a person inside. Gage saw a female, later identified as Danielle Fleischmann-Arvizu (Danielle), on the floor in the back bedroom. Danielle appeared to be dead. Gage also saw a male, later identified as Guillermo Arvizu (Guillermo), dying in the bathroom with his legs extending out into the back bedroom. Guillermo was the person Gage heard groaning. A firefighter arrived and Gage asked him to attend to Guillermo. The firefighter directed Gage to the bathtub, wherein Gage found a female child, who was also dead and who was later identified as five-year-old Hayley Fleischmann (Hayley).
As Gage was looking around the door, a four-year-old female who was behind the door, later identified as “Gabby,” said repeatedly, “Don’t shoot me.” Gage testified that Gabby was sitting on the edge of the bathtub with the shower curtain around her, and that he would not have seen her had she not spoken. Gage handed Gabby to a firefighter and the firefighter moved Gabby to another part of the house. Then, Gage asked Guillermo several times “who did this?” Guillermo answered, but the response was distorted because he was gurgling as he spoke. At trial, Gage was not permitted to imitate the sound Guillermo made, but he testified that it was a word that began with the letter “L” and ended with “NA”–“a word like Lorna.” Notably, appellant’s street name was Luna. Also, appellant had a tattoo on his neck with the word “LUNA.”
Dr. P. Shroede, assistant medical examiner with the Harris County Medical Examiner’s Office, performed autopsies on the three victims. Dr. Schroede testified that Guillermo died from a single shotgun wound to the chest. Danielle, who was eight to nine months pregnant when she was murdered, died from a single penetrating gunshot wound to the head from a .380 caliber handgun. Hayley was murdered by a single perforating gunshot wound to the face from a .380 caliber handgun.
Fort Bend County Sheriff’s Sergeant R. Becker processed the crime scene at the house at 10027 King Ranch. In Sergeant Becker’s opinion, Guillermo was near the front door in the foyer area when he received a shotgun blast to his midsection. Becker testified that he believed the shotgun was discharged two times at the front door. The evidence revealed that one 12-gauge shotgun shell was found outside the residence directly in front of the front door, and a large number of pellets were found on the doormat. The storm door was not damaged, but the front door had a hole in it, as did the window shade on the inside of the front door. Shotgun shell wadding was located outside the house in the area of the front entryway. Another shot shell casing and wadding from a 12-gauge shotgun were recovered in the hallway of the house. Additionally, three .380 casings and a bullet were recovered from the master bathroom. Thus, a total of five shots, two from a shotgun and three from a .380 gun were known to have been fired.
M. Clements, a firearms examiner for the Harris County Sheriff’s Office, testified that the three .380 auto cartridge casings were fired from the same weapon. Clements further testified that three projectiles/bullets recovered were all consistent with a .380 automatic cartridge, and that, in his opinion, the projectiles were fired from the same gun. The markings were consistent with being fired from a .380 auto Sterling Arms brand gun.
At the crime scene, Sergeant Becker took photos, blood samples, and blood swabs. The evidence revealed that appellant’s blood was found on Danielle’s pants. A mixture of appellant’s blood and Danielle’s blood was found on the outside of the master bathroom door. A bloody palm print found on the master bath doorway molding was identified as appellant’s. Appellant’s blood was also found in the following areas: on the driveway, outside front porch, inside the storm door, outside the master bedroom door, outside south bedroom wall, and above the master bedroom light switch. A picture of appellant at a birthday party was retrieved from the house, showing appellant, Hayley, and Gabby. The picture was admitted into evidence.
Later that same day, October 1, 2001, Houston police received a report of a shooting in progress in southeast Houston. HPD Officer D. W. Moore responded and saw that appellant appeared to be the victim of a gunshot wound. Appellant reported that an unknown vehicle drove by and shot him as he was walking down the street. Further, appellant gave police a description of the car allegedly involved in his shooting. Officer Moore, however, testified that there was no evidence of a shooting at the location where appellant said he had been shot. Appellant did not notify police about any other shootings or victims from the triple homicide.
Officer Moore testified that appellant had pellet wounds on his arms and chest, consistent with being hit by a shotgun blast. Appellant was treated for his injuries at Ben Taub Hospital. Following his arrest on October 10, 2001, photographs were taken of appellant, showing injuries from shotgun pellets. Appellant also had a bruise on the finger of his right hand, which Sergeant M. Lorenz testified was indicative of someone loading a semi-automatic weapon improperly. Lorenz explained that the slide breech can catch that part of the hand, leaving a blood blister like the one on appellant’s hand. Lorenz testified that is but one of the ways a person could receive such a blister.
At trial, the State presented the testimony of witnesses who were in the neighborhood at the time of the incident. First, C. Ballard testified that he heard a loud boom and looking out, saw a black truck parked at a house across the street. Further, Ballard testified that he heard a second loud boom, recognized it as a gunshot, and called police. Ballard saw a black male back the truck out and drive away, but he could not see how many people were in the truck. Ballard told police that the truck occupants could have been two black males or a black male and black female, but at trial, could only recall a black male.
Next, C. Wells testified that he heard two “booms” and, after calling police, saw a black male and a black female standing in the driveway in front of a black truck. Wells testified that, after he saw the man and woman standing by the truck, he did not hear any more shots. Wells did not recall what they were wearing. One deputy testified that Wells told him that he saw a black female coming out of the house and getting into a car and that he saw a black male come out of the house with a gun at his side. Wells subsequently identified a black female, Latasha Simmons (Simmons), from a photo spread.
Likewise, D. Urbina testified that he heard two explosions coming from the house. Urbina testified that, after the second explosion, he saw a male run from the house to the truck, get into the truck on the passenger side, and then leave. Urbina described the person he saw get in the truck as Hispanic or white or “mixed,” “kind of skinny,” and having a short hair cut. Appellant is a Hispanic male. Urbina testified that he did not see anyone else get into the truck before it left the house. The truck was subsequently identified as belonging to Steve McKinney, a/k/a Caine (McKinney), a black male, and an associate of appellant’s. Appellant’s blood was found on the window tint, passenger door handle, passenger seat floorboard, and passenger seat of McKinney’s truck.
Eight days later, on October 9, 2001, McKinney, Simmons, and Lasha Adams (Adams) were arrested for their involvement in a separate shooting. At trial, Simmons testified that she was currently in jail for the October 9 shooting and that the State had given her “use” immunity with respect to her testimony in the instant case. Simmons testified that she was a manic depressant [sic] schizophrenic and that, a few days prior to the October 1, 2001 shooting, she was in a psychiatric hospital because she had attempted suicide. She further testified that, on October 1, 2001, she was using cocaine, Prozac, tricidome [sic], and florazene [sic], and that the drugs left her feeling woozy and high.
Simmons testified that, on October 1, 2001, she, appellant, and McKinney went to Fort Bend County in McKinney’s black truck. Simmons indicated that McKinney drove, but that appellant told McKinney how to find Guillermo’s house and offered to give McKinney gas money. Simmons further testified that appellant explained that Guillermo did not like strangers coming to his house, but that the door would be unlocked. Simmons reported that she and McKinney did not know Guillermo, but that appellant did, and that appellant went into the Arvizu house after McKinney dropped appellant off at the nearby corner. Simmons testified that she and McKinney left to get something to eat and then returned to the Arvizu house, pulling the truck into the driveway. Simmons reported that McKinney was supposed to knock on the door, and that he took a black bag to the front of the house and knocked on the door.
Simmons testified that, after McKinney left her sight, she heard a gun shot, causing her to get out of the truck and walk toward the front door, but indicated that she never entered the house. Simmons overheard appellant say, “Man, you shot me.” She testified that she also heard a little girl crying, saying, “Don’t shoot my mommy.” Simmons testified that McKinney returned to the truck and got inside, placing a shotgun on his lap. Simmons indicated that, after McKinney returned to the truck, they heard two shots.
Finally, Simmons testified that appellant returned to the truck, bleeding, and said, “I just shot the wife and one of the kids in the back of the head.” In her earlier statement, however, Simmons told police that appellant said, “I shot the bitch in the head and the baby,” and that appellant thought the little girl was a little boy. When questioned about the inconsistencies in her statements, Simmons reported that she was on drugs along with her manic-depressant [sic] medication during her first statement to police.
Like Simmons, Lasha Adams gave a statement to police after she was arrested for the October 9, 2001 shooting. At trial, Simmons testified that, although she knew Adams, she never spoke to Adams about the October 1, 2001 murders. To impeach Simmons, however, defense counsel called Adams to testify. Adams testified that she had previously manufactured and delivered narcotics. Adams further admitted that she had a history of shoplifting, narcotics possession, and robbery. Adams testified that Simmons told her that Simmons and her boyfriend [McKinney] had killed three Mexicans [sic] because “they kept lying to them.” Specifically, Adams testified that Simmons told her that Simmons had killed the man and that McKinney killed the other two. Adams indicated that Simmons said she had the “little gun” and that McKinney had the “rifle.”
The State presented the testimony of Deardis Scott, who had recently pled guilty to possession of a controlled substance. Scott knew appellant as “Luna.” Scott testified that, in the weeks leading up to the incident, appellant repeatedly offered to buy Scott’s .380 caliber handgun, because he had a “big lick” coming up, meaning that appellant had to “hit a robbery or come up on a numerous amount of money.” Additionally, the State presented the testimony of Lorenzo Butler, another of appellant’s associates, who was incarcerated at the time he was subpoenaed to testify in the instant case. Butler testified that, prior to the incident, appellant took Scott’s handgun, placed it in a black bag, and then left their location.
After his arrest, appellant wrote a series of letters. In one letter, appellant acknowledged his presence at the Arvizu house on October 1, 2001, writing, in part:
My motive for being at the Arvizu residence on 10-1-01 was to do “something” so that later on I could do “something else” that was for the benefit for the sheep. . . Then when everything that occurred at the Arivzu residence on 10-1-01 is revealed, they will see my intentions of what I was striving to accomplish but just did not know what the end result was what it was. . . . They will understand my responsibility and if they were in my shoes they would have probably done the same thing.
McKinney also provided letters he received from appellant, wherein appellant wrote, “I personally forgive you for shooting me.”
DISCUSSION
Sufficiency of the Evidence
A. Standards of Review
A legal-sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.] 1997, no pet.). We note that, as the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, the jury may believe or disbelieve all or any part of a witness’s testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981) (opining that “a jury is entitled to accept one version of the facts and reject another or reject any of a witness’s testimony”).
We review the factual sufficiency of the evidence by reviewing all of the evidence as a whole neutrally, not in the light most favorable to the prosecution. Johnson, 23 S.W.3d at 7. In a factual-sufficiency review, we may not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The Court of Criminal Appeals has recently stated:
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 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 [that] 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, No. 539-02, 2004 WL 840786, at *7(Tex. Crim. App. Apr. 21, 2004). We must consider the most important evidence that the appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
B. Capital Murder
Under the law applicable in this case, a person commits the offense of capital murder if he intentionally commits murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, or obstruction or retaliation. Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon Supp. 2004). Further, a person commits the offense of capital murder if he murders more than one person during the same criminal transaction, or if he murders an individual under six years of age. Tex. Pen. Code Ann. § 19.03(a)(7-8) (Vernon Supp. 2004).
Under the law of parties, 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 (Vernon Supp. 2004). 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. Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon Supp. 2004).
In determining whether a person is a party to an offense, the fact finder may examine the events occurring before, during, and after the commission of the offense. Wygal v. State, 555 S.W.2d 465, 468-69 (Tex. Crim. App. 1977); Diaz v. State, 902 S.W.2d 149, 151-52 (Tex. App.—Houston [1st Dist.] 1995, no pet). Circumstantial evidence may be sufficient to show that one is a party to the offense. Wygal, 555 S.W.2d at 469. Mere presence alone will not make one a party to an offense; nevertheless, it 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 he was a participant. Id. at 469, n.3.
Evidence is sufficient to support a conviction under the law of parties where the actor is physically present and encourages the commission of the offense, either by words or agreement. Diaz, 902 S.W.2d at 152. An agreement of parties to act together in a common design can seldom be proved by words, but reliance can often be had on the actions of parties showing an understanding and a common design to do a certain act. Wygal, 555 S.W.2d at 469. Evidence that a defendant drove the getaway car after a robbery has been held sufficient to convict the driver as a party to the offense. See Thompson v. State, 697 S.W.2d 413, 417 (Tex. Crim. App. 1985); Brewer v. State, 852 S.W.2d 643, 647 (Tex. App.—Dallas 1993, pet ref’d).
C. Legal Sufficiency of the Evidence
In his first point of error, appellant contends that the evidence was legally insufficient to support his conviction. Specifically, appellant contends that a rational trier-of-fact could not have found the essential elements of the crime beyond a reasonable doubt.
The indictment in the instant case alleged that appellant, in the course of attempting to commit and committing robbery of Guillermo Arvizu and Danielle Fleischmann-Arvizu, intentionally committed murder by causing the deaths of those individuals, Guillermo Arvizu and Danielle Fleischmann-Arvizu, by shooting them with a firearm. The indictment further alleged that appellant intentionally and knowingly caused the death of Hayley Fleischmann, an individual under six years of age, by shooting her with a firearm. The jury charge authorized the jury to find appellant guilty of the offenses alleged either by his own actions or as a party to the offenses.
The evidence shows that Guillermo was murdered by a shotgun wound. Appellant was hit with shotgun pellets during the incident and, as a result, appellant’s blood was found near Guillermo’s body, all over the Arvizu house, and in the black truck. Appellant lied to police about his injuries. Appellant also had a bruise on his right hand consistent with loading a semi-automatic weapon improperly. Danielle and Hayley were each murdered by a gunshot wound to the head from a .380 caliber handgun, a type of semi-automatic weapon.
Further, the State presented witnesses who testified that appellant had attempted to buy, and then later stole, a .380 caliber handgun for an upcoming “big lick.” Other evidence showed that appellant knew the Arvizu family and the location of their house, and told McKinney that the door would be unlocked. Appellant directed McKinney to the Arvizu house and, because appellant knew that Guillermo did not like strangers coming to his house, appellant initially entered the house alone. In his dying declaration, Guillermo uttered that it was “L –NA” who committed the crime. Appellant’s street name was Luna, and “Luna” was tatooed on appellant’s neck.
The jury found appellant guilty of the capital murders of Guillermo Arvizu and Hayley Fleischmann. Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found that appellant intentionally murdered Guillermo in the course of attempting to commit and committing robbery of Guillermo and Danielle, and that appellant intentionally murdered five-year-old Hayley Fleischmann, either by his own actions or as a party to the offenses. Accordingly, we hold that the evidence was legally sufficient to support appellant’s conviction for capital murder.
We overrule appellant’s first point of error.
D. Factual Sufficiency of the Evidence
In his second point of error, appellant contends that the evidence was factually insufficient to support his conviction. First, appellant contends that “the reliance upon the dying declaration of [Guillermo] should be reconsidered.” Appellant also asserts that, because appellant was shot alongside Guillermo when McKinney sent the shotgun blast through the door, there is no way that appellant could have shot Guillermo.
As noted above, at trial, Deputy Gage testified that, as Guillermo lay dying from a shotgun wound to the chest, Guillermo responded to his inquiry, “Who did this?” with a sound that began with the letter “L” and ended with “NA.” Gage testified that Guillermo’s response was distorted due to gurgling noises, but that it was “a word like Lorna.” The record reveals that appellant’s street name was Luna, and that appellant had a tattoo on his neck with the word “LUNA.” After weighing this evidence, the jury determined that the evidence supported the finding of guilt beyond a reasonable doubt. We must defer to the fact finder’s determinations, particularly those concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 9. The jury was entitled to believe the events took place as Gage testified and that Guillermo was attempting to vocalize “Luna” with his dying breath. We will not substitute our judgment for that of the jury. Zuniga, 2004 WL 840786, at *4.
Second, appellant asserts that “any testimony from Simmons is completely unreliable.” Specifically, contends that Simmons is a liar and “very likely the actual killer of Danielle and [Hayley].” Appellant argues that, on the day of the offense, Simmons was “high on crack and psychiatric medicine.” Further, appellant asserts that Simmons perjured herself when testifying that she was never inside the Arvizu house because State witnesses established that she was in the house. Finally, appellant argues that Simmons’s statements that appellant said he shot a little boy were “completely outside the scope of any rationality” because, as a “friend of the family,” appellant knew that there were two girls, and, had appellant been trying to kill any witnesses, he would have known to look for Gabby.
The record indicates that appellant called Simmons as an adverse witness. Simmons testified that, on October 1, 2001, she was “feeling woozy and high” from cocaine and psychiatric medications. Simmons testified that she never entered the Arvizu house; however, a deputy testified that State’s witness Wells told him that he saw a black female coming out of the house and getting into a car, and the record indicates that Wells subsequently identified Simmons from a photo spread. When questioned about the inconsistencies in her statements, Simmons reported that she was using narcotics, along with her manic-depressant [sic] medication, during her first statement to police.
Thus, the jury heard Simmons admit to being under the influence of legal and illegal narcotics both at the time of the incident and at the time of her statement to police. The jury also heard Simmons explain that the inconsistencies in her prior statements were the result of her narcotics usage. Finally, the jury heard the testimony that appellant asserts is contradictory: (1) Simmons’s testimony that she heard two shots after she and McKinney got back into the truck and (2) witness Wells’s testimony that he did not hear any more shots after he saw a black male and black female standing by truck.
As the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to their testimony, the jury was free to believe or disbelieve all or any part of Simmons’s testimony. See Penagraph, 623 S.W.2d at 343; Escovedo v. State, 902 S.W.2d 109, 115 (Tex. App.—Houston [1st Dist.] 1995, pet. denied). It was within the province of the jury to reconcile the conflicts and contradictions in the evidence. See Chiles v. State, 988 S.W.2d 411, 415 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). After weighing Simmons’s testimony, the jury determined that the evidence supported the finding of guilt beyond a reasonable doubt. We will not substitute our judgment for that of the jury. Zuniga, 2004 WL 840786, at *4.
Next, appellant contends that the State’s witnesses, Scott and Butler, were “completely undermined in their testimony regarding appellant.” Effectively, appellant is attacking the credibility of both Scott and Butler. When a jury’s determination depends primarily on its evaluation of a witnesses’ demeanor and credibility, it is entitled to almost total deference. Johnson, 23 S.W.3d at 8-9. In the instant case, the jury was free to believe or disbelieve all or any part of the testimony of Scott and Butler. See Penagraph, 623 S.W.2d at 343; Escovedo, 902 S.W.2d at 115. We defer to the jury’s decision.
Finally, appellant asserts that his innocence was established by a videotaped interview of four-year-old Gabby. Appellant contends that Gabby witnessed the killings and was “cognizant enough to know that she could have been shot.” Appellant asserts that, on the tape, Gabby is clear that it was strangers who shot her family. The record shows that the trial court admitted Gabby’s videotaped interview into evidence and allowed the State to publish it for the jury. Thus, the jury saw four-year-old Gabby questioned about the day her mother, father, and sister were murdered. It was within the province of the jury to reconcile the conflicts and contradictions in the evidence. See Chiles, 988 S.W.2d at 415. We defer to the jury’s decision.
Examining all of the evidence neutrally, we hold that the proof of guilt was not so obviously weak as to undermine confidence in the jury’s determination; nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. Accordingly, we overrule appellant’s second point of error.
CONCLUSION
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Keyes and Bland.
Do not publish. Tex. R. App. P. 47.2(b).