Affirmed and Opinion filed December 31, 2002.
In The
Fourteenth Court of Appeals
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NO. 14-01-01031-CR
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JOEL HERRERA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause No. 804,064
O P I N I O N
Appellant Joel Herrera was convicted of capital murder. He challenges the legal and factual sufficiency of the evidence against him and contends the trial court erred in denying his request for a lesser included offense charge of murder. We affirm.
I. Factual Background
On the evening of December 13, 1997, a drive-by shooting occurred at a party held by members of a street gang known as the Crazy Kings. Thirteen people were shot, and two Crazy Kings members, Jose Garcia and Joe Gutierrez, were killed in the fusillade.
Appellant was a member of the North Side Central Posse, a rival gang of the Crazy Kings. Only a month before the drive-by shooting, two members of appellant’s gang had been shot during an altercation with the Crazy Kings. At trial, several witnesses, including his former girlfriend and a non-accomplice witness who observed him both immediately before and after the shootings, testified as to appellant’s participation in the murders.
II. Legal and Factual Sufficiency
Reviewing courts invoke separate tests to determine whether the evidence adduced meets the legal and factual sufficiency tests. See Johnson v. State, 23 S.W.3d 1, 11 n.13 (Tex. Crim. App. 2000) (noting that appellate courts must be “persistently mindful” in distinguishing between the standards for legal and factual sufficiency reviews). When an appellant challenges both the legal and factual sufficiency of the evidence, the reviewing court addresses the legal sufficiency challenge first because an affirmative finding on that issue will result in rendition of a judgment of acquittal, while a finding of factual insufficiency warrants a remand for a new trial. See Nickerson v. State, 69 S .W.3d 661, 668 (Tex. App.—Waco 2002, pet. ref’d). In conducting a legal sufficiency review, an appellate court must view the evidence in the light most favorable to the prosecution and determine if any rational fact finder could have found the crime’s essential elements to have been proven beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The reviewing court will examine the entire body of evidence; if any evidence establishes guilt beyond a reasonable doubt, and the fact finder believes that evidence, the appellate court may not reverse the fact finder’s verdict on grounds of legal insufficiency. See id. In reviewing for factual sufficiency, an appellate court will examine all the evidence without the prism of “in the light most favorable to the prosecution,” and will set aside the fact finder’s verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). However, an appellate court conducting a factual sufficiency review must be appropriately deferential so as to avoid substituting its own judgment for that of the fact finder. Id. at 648. Accordingly, we are only authorized to set aside the fact finder’s finding in instances where it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id.
Ample testimonial evidence illustrates both the legal and factual sufficiency of the evidence. Gilbert Delgado, a non-accomplice witness, testified to appellant’s behavior the night of December 13. According to Delgado’s testimony, immediately before the drive-by shooting appellant was at the house of Hiram Delacruz, one of the two gang members injured during the confrontation with the Crazy Kings. Appellant was with Delacruz and fellow gang member Bruce Espinosa.
As the Crazy Kings party was only six or seven blocks from the Delacruz house, the subject of the rival gang arose during conversation. Espinosa suggested that they go to the party and shoot everyone in attendance. Appellant was present when the drive-by shooting was discussed and as the weapons to be used were loaded. Appellant retrieved one of the weapons so that he might examine it. He volunteered his vehicle—which would later be identified by witnesses to the shooting—to be used in the enterprise. Appellant, Espinosa and Delacruz left the house together. Only a few minutes later, Delgado heard gunshots. Appellant returned to the Delacruz house shortly after the shooting in the company of both Espinosa and Delacruz. Upon their return, Delgado noted that Appellant, Delacruz and Espinosa were very quiet, and that appellant appeared to be in “shock.”
After the night in question, appellant admitted his own involvement in the shootings on more than one occasion. According to the testimony of appellant’s former girlfriend, he confessed to the offense and expressed remorse. She further testified that he asked her to clean his vehicle, in which she found fifteen spent cartridge casings, gloves, and ski masks. She testified that before the shooting appellant was angry that the Crazy Kings had shot Delacruz and they were going take revenge.
Delgado’s testimony, coupled with that of appellant’s former girlfriend, clearly evidences appellant’s involvement in the drive-by shootings. Appellant also admitted his complicity in the shootings to the authorities, and in two of the three statements he gave to police, he admitted that he drove his car during the drive-by shooting. He also stated the shooting was a gang related retaliation for the shooting of Delacruz by the Crazy Kings. Based on the foregoing evidence, we find the evidence legally and factually sufficient to support the trial court’s finding. From it, a rational trier of fact could conclude that the enhancement was proven beyond a reasonable doubt. Further, the fact finder’s decision is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
III. Lesser Included Offense
Appellant maintains that he was entitled to an instruction on the lesser included offense of murder. If facts are elicited during trial that raise an issue of a lesser included offense and a charge is properly requested, then a charge on the issue must be given. Ross v. State, 861 S.W.2d 870, 877 (Tex. Crim. App. 1992). The Court of Criminal Appeals has established a two-prong test to determine whether a defendant is entitled to a charge on a lesser-included offense. Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997). In order for appellant to prevail in his argument that he was entitled to the instruction on the lesser included offense, he must meet the following test:
[F]irst, the lesser included offense must be included within the proof necessary to establish the offense charged, and, second, some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense.
Id. (quoting Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993)).
In its brief, the State concedes that appellant meets the first prong of the test. Indeed, murder is, by definition, a lesser included offense of capital murder because it is established by proof of the same or less than all the facts required to establish the commission of capital murder. Havard v. State, 800 S.W.2d 195, 216 (Tex. Crim. App. 1989); see also Ross v. State, 861 S.W.2d 870, 876 (Tex. Crim. App. 1992).
Having determined appellant satisfies the first prong of the test, we turn to the second prong. In deciding whether the issue of a lesser included offense is raised, we look to all the evidence presented at trial and not solely whether the defendant’s testimony raises or negates the issue of the lesser-included offense. Havard, 800 S.W.2d at 216. The credibility of the evidence and whether it is controverted or conflicts with other evidence may not be considered. Id. Furthermore, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Skinner, 956 S.W.2d at 543. Rather, there must be some evidence directly germane to a lesser-included offense for the factfinder to consider before an instruction on a lesser-included offense is warranted. Id.
For a rational jury to find that appellant was guilty only of murder, there must exist some evidence in the record that appellant did not intentionally or knowingly kill the victims. Id. Thus, for the lesser-included instruction of murder to be appropriate, a rational jury must be able to find that appellant behaved in such a way that he consciously disregarded a substantial and unjustifiable risk toward the victims, but was not aware that his conduct was reasonably certain to cause the resulting deaths. Id.
In his brief, appellant cites no specific evidence that he did not perform an act with the intent to kill, thus entitling him to an instruction on the lesser included offense of murder. Appellant’s behavior on the night of the shootings, coupled with his subsequent confessions, indicate his awareness that his conduct was reasonably certain to cause the resulting deaths. There is no evidence in the record that appellant had any other motive for participating in the drive-by shooting than to further his own desire to kill rival gang members, and there is no evidence upon which a rational jury could have convicted him of the lesser-included offense of murder. See id. at 543–44. In fact, all of the evidence points to the opposite conclusion: that appellant intentionally and knowingly killed the victims. The firearms involved were used to in a deadly fashion, and death resulted from their use. It would not be rational for a jury to conclude that appellant was not aware that his conduct was reasonably certain to cause death. Given these facts, a rational jury could not have found that appellant did not intentionally or knowingly kill each of the victims. Because appellant has not met the second prong of the Rousseau test, he was not entitled to a charge on the lesser-included offense of murder.
After reviewing the record, we do not find that the evidence raises the issue of murder, and thus, appellant was not entitled to an instruction on the lesser included offense.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed.
/s/ Eva M. Guzman
Justice
Judgment rendered and Opinion filed December 31, 2002.
Panel consists of Justices Edelman, Seymore, and Guzman.
Do Not Publish — Tex. R. App. P. 47.3(b).