IN THE
TENTH COURT OF APPEALS
No. 10-04-00091-CR
David Contreras,
Appellant
v.
The State of Texas,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 2003-746-C
MEMORANDUM Opinion
Appellant appeals his conviction for criminal attempt to commit capital murder in the course of robbery. See Tex. Penal Code Ann. § 15.01(a) (Vernon 2003) (criminal attempt); Act of May 26, 1993, 73d Leg., R.S., ch. 715, § 1, sec. (a)(2), 1993 Tex. Gen. Laws 2800, 2800 (amended 2003) (current version at Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2004-2005)) (capital murder); Tex. Penal Code Ann. § 29.02(a) (Vernon 2003) (robbery). We will affirm.
In Appellant’s sole issue, he contends that the evidence was factually insufficient. “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?” Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).
Appellant argues that the evidence that he attempted to commit capital murder in the course of robbery was factually insufficient. “For a murder involving a theft to constitute a capital murder committed in the course of a robbery, the intent to rob must be formulated before or at the time of the murder.” Herrin v. State, 125 S.W.3d 436, 441 (Tex. Crim. App. 2002). “The general rule is . . . that a theft occurring immediately after an assault will support an inference that the assault was intended to facilitate the theft,” and thus the “evidence is sufficient to prove murder ‘in the course of’ committing robbery in a capital murder case if the State proves that the robbery occurred immediately after the murder.” Cooper v. State, 67 S.W.3d 221, 223 (Tex. Crim. App. 2002); accord McGee v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989). Although Appellant argues that the attempted murder and theft were “contiguous,” he points to contradictory evidence as to which occurred first. Appellant also speculates that Appellant and the victim were fighting over a woman. The State points to evidence that the victim displayed his cash inside a bar, and that when the victim left the bar, Appellant beat the victim to render him unconscious, then began to steal his property. When the victim regained consciousness during the theft, Appellant shot him in the head. On this evidence, viewed in a neutral light, the jury was rationally justified in finding beyond a reasonable doubt that Appellant attempted to kill the victim in the course of robbing him, in order to facilitate the robbery. We overrule Appellant’s issue.
Having overruled Appellant’s issue, we affirm.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed January 5, 2005
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