Affirmed and Memorandum Opinion filed February 27, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-00321-CR
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SANTOS ARMANDO-ALFARO RAMIREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 875,584
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M E M O R A N D U M O P I N I O N
Santos Armando-Alfaro Ramirez appeals his conviction for capital murder. He contends: (1) the trial court erred by failing to include an instruction in the application paragraph of the jury charge; (2) he received ineffective assistance of counsel; and (3–4) the evidence is legally and factually insufficient to support his conviction. We affirm.
I. Factual and Procedural Background
On the morning of January 6, 2000, complainant Marina Cruz left her apartment with her seven-year-old granddaughter, Ashley. As they approached Ms. Cruz’s van, two men, later identified as appellant and a man nicknamed “Pelon,” approached Ms. Cruz and Ashley and attempted to rob Ms. Cruz. According to Ashley’s account at trial, appellant took Ms. Cruz’s jewelry while Pelon pointed a gun at them. Pelon asked for Ms. Cruz’s purse, and she replied that she would give him the purse “with one condition.” Pelon responded, “You don’t give me conditions,” and shot Ms. Cruz, killing her.
After the murder, appellant and Pelon visited appellant’s girlfriend. They told her they attempted to rob a woman and that Pelon became angry and shot the woman. Several days later, appellant, in an attempt to change his appearance, asked his girlfriend to cut his hair. Appellant also told his girlfriend he was planning to go to New York. Several months later, appellant was apprehended in Pennsylvania and transported to Texas for trial. A jury convicted him of capital murder and sentenced him to life in prison.
II. Analysis and Discussion
A. Was there error in the application paragraph of the jury charge?
In his first issue, appellant contends the trial court erred by failing to include the requirement that the murder was committed in furtherance of the unlawful purpose of the conspiracy in the application paragraph of the jury charge. The trial court defined the law of parties as it relates to conspiracy, including in the charge the following statement:
If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
(emphasis added).
The pertinent application paragraph of the jury charge appeared four paragraphs later and omitted the phrase emphasized above. The application paragraph stated:
If you find from the evidence beyond a reasonable doubt that the defendant, Santos Armando-Alfaro Ramirez, and El Pelon entered into an agreement to commit the felony offense of robbery of Marina Cruz, and pursuant to that agreement, if any, they did carry out their conspiracy and that in Harris County, Texas, on or about the 6th day of January, 2000, while in the course of committing such robbery of Marina Cruz, El Pelon intentionally caused the death of Marina Cruz by shooting Marina Cruz with a deadly weapon, namely a firearm, and that the murder of Marina Cruz was an offense that the defendant should have anticipated as a result of carrying out the conspiracy, then you will find the defendant guilty of capital murder, as charged in the indictment.
Appellant contends the trial court, in the application paragraph of the jury charge, relieved the State of its obligation to prove that Ms. Cruz’s murder was committed in furtherance of the unlawful purpose of the conspiracy.
Appellant did not object to the jury charge; therefore, he must demonstrate that any error resulted in egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). A determination of egregious harm requires an examination of the record as a whole. Id. We must determine the actual degree of harm in light of the entire jury charge, the state of the evidence (including the contested issues and weight of probative evidence), the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Id.
A proper charge of the law of parties includes both an abstract definition and an application paragraph. See McFarland v. State, 928 S.W.2d 482, 515 (Tex. Crim. App. 1996). Reversible error occurs when the application paragraph contains no application of the law of parties to the facts and when the evidence raises an issue on the law of parties. Chatman v. State, 846 S.W.2d 329, 331–32 (Tex. Crim. App. 1993). A perfect charge is not necessary, however, as long as the charge adequately applies the law of parties to the facts. See id.
Here, the abstract portion of the charge contained the wording that allowed conviction if the jury found the offense was committed in furtherance of the unlawful purpose of the conspiracy. But the application paragraph omitted that phrase. In reviewing for charge error, we must read the charge as a whole in order to flesh out and explain the application paragraph. McGowen v. State, 938 S.W.2d 732, 739 (Tex. Crim. App. 1996). Applying that standard, the charge as a whole did not relieve the State of its burden of proving that the offense was committed in furtherance of the unlawful purpose of the conspiracy. In any event, this omission from the charge did not result in egregious harm. See Marvis v. State, 36 S.W.3d 878, 880 (Tex. Crim. App. 2001). We overrule appellant’s first issue.
B. Was trial counsel ineffective in failing to object to the court’s charge?
In his second issue, appellant contends his trial counsel rendered ineffective assistance by failing to object to the trial court’s improper instructions to the jury. Appellant contends the improper instruction resulted in the jury finding appellant guilty of capital murder without requiring that all essential elements be proved beyond a reasonable doubt.
Both the United States and the Texas Constitutions guarantee an accused the right to assistance of counsel. U. S. Const. amend. VI; Tex. Const. art. I, §10; Tex. Code Crim. Proc. art. 1.05. This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show: (1) that trial counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms; and (2) that there is a “reasonable probability” the result of the proceeding would have been different but for trial counsel’s unprofessional errors. Strickland, 466 U.S. at 688–94. Appellant must establish both points by a preponderance of the evidence to show ineffective assistance of counsel. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
In assessing appellant’s claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden to rebut this presumption by presenting evidence that shows why trial counsel did what he did. See id. The record in this case contains no evidence of the reasoning and strategy underlying appellant’s trial counsel’s actions. From this record, one could conclude there were legitimate and professionally sound reasons for trial counsel’s conduct or one could speculate that there were not. As an appellate court, we cannot engage in such speculation. See id. Appellant has failed to demonstrate his trial counsel was ineffective under the first prong of Strickland.
Further, as discussed above, after reviewing the record and the jury charge as a whole, we conclude that the jury charge did not relieve the State of its burden to prove the offense was committed in furtherance of the conspiracy. Under these circumstances, appellant has not demonstrated a reasonable probability that, but for his counsel’s failure to object to the jury charge, the result of the proceeding would have been different. Accordingly, appellant has also failed to meet the second prong of Strickland. We overrule appellant’s second issue.
C. Was the evidence legally and factually sufficient to support the conviction?
In his third issue, appellant contends the evidence is legally insufficient to support his conviction. In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State’s evidence or believe that appellant’s evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
class=Section3>A person commits capital murder if he intentionally or knowingly commits murder in the course of committing or attempting to commit robbery. Tex. Pen. Code § 19.03(a)(2). Under the law of parties, a person may be convicted as a party to an offense if the offense is committed by his own conduct or by the conduct of another for which he is criminally responsible. Tex. Pen. Code § 7.01(a). Section 7.02(a)(2) of the Texas Penal Code provides that 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. Section 7.02(b) provides that if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. See Tex. Pen. Code § 7.02(b).
Because the evidence established that Pelon, not appellant, shot Ms. Cruz, in finding appellant guilty of capital murder, the jury necessarily concluded either that appellant, during the course of robbing Ms. Cruz, intentionally promoted or assisted in the murder or that, in facilitating a conspiracy to commit robbery, appellant should have anticipated the act that resulted in Ms. Cruz’s murder. See Tex. Pen. Code §§ 7.02(a)(2), (b).
The record shows that on the morning of the offense, appellant and Pelon set out to rob people near the flea market. Appellant knew Pelon had a gun. At the time of the robbery, Pelon pointed the gun at Ms. Cruz and threatened to shoot her. Appellant forcefully took Ms. Cruz’s belongings while Pelon pointed the gun at her. After the murder, the pair abandoned the property and fled the scene. They later admitted the offense to appellant’s girlfriend. After learning from a television news report that the perpetrators of the offense were being sought by police, appellant changed his appearance and fled the city. Viewing the evidence in the light most favorable to the verdict, we find sufficient evidence to support the conviction. See Flores v. State, 681 S.W.2d 94, 96 (Tex. App.—Houston [14th Dist.] 1984), aff’d, 690 S.W.2d 281 (Tex. Crim. App. 1985) (holding murder should have been
class=Section4>anticipated as a possible result of burglary where appellant knew companion had a gun). We overrule appellant’s third issue.
In his fourth issue, appellant contends the evidence is factually insufficient to support his conviction. In reviewing factual sufficiency, we look at all of the evidence in a neutral light and will reverse a conviction only if the evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and manifestly unjust or if that evidence, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). At trial, appellant did not present evidence, but relied on his cross-examination of the State’s witnesses. Appellant’s cross-examination centered on whether the lighting at the apartment complex was sufficient for the eyewitnesses to see appellant and whether appellant actually anticipated the offense.
The jury, as the trier of fact, “was the sole judge of the credibility of witnesses and of the strength of the evidence.” Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury could choose to believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). It is apparent from its verdict that the jury chose to believe the State’s witnesses. Having reviewed all of the evidence, we find it is not so weak as to render the jury’s verdict manifestly unjust, nor is it greatly outweighed by contrary evidence. We overrule appellant’s fourth issue.
We affirm the trial court’s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed February 27, 2003.
Panel consists of Justices Anderson, Fowler, and Frost.
Do Not Publish — Tex. R. App. P. 47.2(b).