NUMBER 13-02-00715-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROSENDO RODRIGUEZ, JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 206th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Yañez, and Castillo
Memorandum Opinion by Justice Hinojosa
In a single indictment, appellant, Rosendo Rodriguez, Jr., was charged with one count of attempted capital murder and one count of murder. The jury found him not guilty of murder, but found him guilty of attempted capital murder and assessed his punishment at fifteen years’ imprisonment. The trial court has certified that this case “is not a plea-bargain case, and the [appellant] has the right of appeal.” See Tex. R. App. P. 25.2(a)(2). In a single point of error, appellant contends the trial court erred in entering a judgment with an affirmative finding of the use of a deadly weapon because the jury’s verdict was inconsistent and irreconcilable with the facts and law as presented in this case. We affirm.
A. Factual Background
During the evening of January 27, 2002, Esau Romero, Carlos Armando Villarreal, Juan Antonio Quintero, Jose Luis Quintero, Mario Alvarez, Inocente Pompa, and Juan Pablo Sandoval were gathered in the front yard of Juan Sandoval’s home, talking and drinking beer, when a blue truck passed by and opened fire on the group of men. One man was struck by a bullet and another one was grazed. Two other men started to follow the truck in a white Camaro, but returned to the Sandoval home where it was discovered that one of the men, Esau Romero, was dead. Appellant was charged with the murder of Esau Romero and the attempted capital murder of Carlos Armando Villarreal, Jose Luis Quintero, Mario Alvarez, and Juan Sandoval.
B. Legal Sufficiency
Where a multi-count verdict appears inconsistent, the appellate inquiry is limited to a determination of whether the evidence is legally sufficient to support the counts on which a conviction is returned. United States v. Powell, 469 U.S. 57, 64-67 (1984); Dunn v. United States, 284 U.S. 390, 393-94 (1932); Sauceda v. State, 739 S.W.2d 375, 376-77 (Tex. App.–Corpus Christi 1987, pet. ref’d) (quoting Ruiz v. State, 641 S.W.2d 364, 366 (Tex. App.–Corpus Christi 1982, no pet.)). Inconsistent verdicts do not require reversal for legal insufficiency. Jackson v. State, 3 S.W.3d 58, 60 (Tex. App.–Dallas 1999, no pet.) (citing Dunn, 284 U.S. at 393-94). As long as the evidence is sufficient to support the conviction, what the fact finder did with the remainder of the charge is immaterial. Jackson, 3 S.W.3d at 62 (citing Powell, 469 U.S. at 64-67); Ruiz, 641 S.W.2d at 366.
In a legal sufficiency review, this Court must examine the evidence presented in the light most favorable to the verdict and determine whether any 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); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). In making this determination, the reviewing court considers all the evidence admitted that will sustain the conviction, including properly and improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Questions concerning the credibility of the witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). Evidence is not rendered insufficient when conflicting evidence is introduced. Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996). The reviewing court must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution. Id.
On appeal, we measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Wheaton v. State, 129 S.W.3d 267, 271 (Tex. App.–Corpus Christi 2004, no pet.) (en banc). This hypothetically correct jury charge would set out the law, be authorized by the indictment, not necessarily increase the State’s burden of proof or necessarily restrict the State’s theories of liability, and adequately describe the particular offense for which the defendant was tried. Malik, 953 S.W.2d at 240; see Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000) (“We believe the ‘law’ as ‘authorized by the indictment’ must be the statutory elements of the offense . . . as modified by the charging instrument.”).
A person commits the offense of attempted capital murder if, with the specific intent to commit a capital murder, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. See Tex. Pen. Code Ann. § 15.01(a) (Vernon 2003). A person commits the offense of capital murder if he intentionally or knowingly causes the death of more than one person during the same criminal transaction. See Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(7)(A) (Vernon 2003 & Supp. 2004). The indictment alleges that appellant intentionally and knowingly attempted to cause the deaths of Carlos Armando Villarreal, Jose Luis Quintero, Mario Alvarez, and Juan Sandoval by shooting at them with a firearm, and all attempts were committed during the same criminal transaction, amounting to more than mere preparation that tended but failed to effect the commission of the offense intended.
It is undisputed that Juan Quintero, Jose Luis Quintero, Esau Romero, Carlos Armando Villarreal, Mario Alvarez, Inocente Pompa, and Juan Pablo Sandoval were in the front yard of Sandoval’s house on the evening of January 27, 2002. Elizabeth Alvarez testified that on January 27, 2002, she was across the street from the Sandoval house attending a birthday party when she observed a truck pass by with its lights off. She then observed the truck pass by a second time and begin shooting at the Sandoval house. Elizabeth testified that Jose Luis Quintero was shot, and Juan Quintero and Esau Romero got in a white Camaro and began to chase the truck. She “saw some shooting, like to the back of the Camaro, and that’s where Saul got shot in eye.” Elizabeth saw appellant shooting from the passenger side of the truck. Appellant’s brother, Carlos Rodriguez, was driving the truck. Elizabeth testified she did not see anyone else shooting.
Inocente Pompa and Juan Quintero both testified that they saw a blue truck drive by with its lights off and begin shooting. Both witnesses identified appellant as the shooter, and the weapon as a long black gun, “like an Uzi.”
Sandra Range, a crime scene specialist with the Hidalgo County Sheriff’s Office, testified that she recovered two empty bullet casings from the bed of the blue Chevy truck, one 7.62 X 39 and one Winchester .45 automatic. She also recovered one 7.62 X 39 live round and two Winchester .45 automatic live rounds. The blue truck was stolen and there were multiple bullet holes on the passenger side of the truck. Joel Castro, another crime scene specialist with the Sheriff’s Office, testified that he recovered 55 to 60 casings from the crime scene, most of which were 7.62 X 39 casings and some were .45 caliber casings.
Viewing the evidence in the light most favorable to the verdict and measuring it against the essential elements of the offense of attempted capital murder, as defined by the hypothetically correct jury charge, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant attempted to cause the deaths of Carlos Armando Villarreal, Jose Luis Quintero, Mario Alvarez, and Juan Sandoval by shooting at them with a firearm, and all attempts were committed during the same criminal transaction, amounting to more than mere preparation that tended but failed to effect the commission of the offense intended. Accordingly, we hold the evidence is legally sufficient to support appellant’s conviction for attempted capital murder.
C. Affirmative Finding of Deadly Weapon Use
Appellant also contends that because the State decided to have the trial court charge the jury only under the law of parties, the State must prove beyond a reasonable doubt that appellant personally used the deadly weapon to support a deadly weapon affirmative finding. However, the jury charge shows that the jury was instructed it could find appellant guilty of attempted capital murder either as a party or as a principal. Furthermore, an affirmative finding of the use of a deadly weapon is permitted based on a determination that the defendant used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited. Tex. Code Crim. Proc. art. 42.12 § 3g(a)(2) (Vernon Supp. 2004). Because the evidence is legally sufficient to support appellant’s conviction of attempted capital murder with a firearm, we find appellant’s contention is without merit.
Appellant further contends that “although the word ‘firearm’ was properly defined in the first part of the special issue submitted to the jury, the term was not incorporated into the application paragraph of the special issue,” and “absent the incorporation of the term ‘firearm’ into the application paragraph of the special issue submission, the jury could not find that the Appellant had personally used or exhibited a deadly weapon.” However, appellant has failed to cite any case law or authority for this contention. Thus, he has waived this issue. See Tex. R. App. P. 38.1(h).
Appellant’s sole point of error is overruled. The judgment of the trial court is affirmed.
FEDERICO G. HINOJOSA
Justice
Do not publish. See Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and filed this
the 18th day of November, 2004.