Affirmed and Memorandum Opinion filed December 16, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-01357-CR
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KRISTOPHER SCOTT MOODY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 179th District Court
Harris County, Texas
Trial Court Cause No. 910,157
M E M O R A N D U M O P I N I O N
Appellant received a twenty-year sentence after a jury found him guilty of the felony offense of murder. On appeal, appellant asserts in five points of error that the evidence was legally and factually insufficient to convict him, as the primary actor, a party, or a conspirator, and that the trial court committed charge error by including an instruction on law of the parties. We affirm.
I. Factual and Procedural Background
Genaro Gonzalez died after being hit by a car and shot in a fight that broke out in the Amazonia Club parking lot. Earlier in the evening, appellant was at Amazonia with his girlfriend and Charlie Dunn. About one week before the fatal shooting, appellant was involved in another fight at the same club when a group of people jumped him—those same individuals were at Amazonia on the night Gonzalez was shot. After seeing these individuals at Amazonia, appellant called Dunn, who had left the club to go to his girlfriend’s home, and asked Dunn to bring a gun back to the club. When appellant, appellant’s girlfriend, and Dunn left the club around 2 a.m., a fight broke out in the parking lot among appellant, Dunn, and the group that fought with appellant the previous week. Appellant and Dunn were actively involved in the melee, although it is unclear which man actually fired the shot that killed Gonzalez.[1]
The State charged appellant with the felony offense of murder. After a jury trial, appellant was sentenced to twenty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. At trial, the State’s primary theory was that appellant was the primary actor and fired the fatal shot, although the State, and appellant, also introduced evidence that indicated Dunn was the shooter. On appeal, appellant has five points of error; the first three challenge the legal sufficiency of the evidence,[2] the fourth challenges the factual sufficiency of the evidence, and the fifth challenges the propriety of including an instruction on the law of parties in the jury charge. We initially address appellant’s fifth issue before turning to the legal and factual sufficiency reviews.
II. The trial court correctly submitted a jury instruction on the law of parties.
Under Texas law, “a person is criminally responsible as a party . . . if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.” Tex. Penal Code § 7.01(a). The Texas Court of Criminal Appeals set forth the test to determine whether a charge on the law of parties was appropriate in McCuin v. State:
Where the evidence introduced . . . shows the active participation in the offense by two or more persons, the trial court should first remove from consideration the acts and conduct of the non-defendant actor. Then, if the evidence of the conduct of the defendant then on trial would be sufficient, in and of itself, to sustain the conviction, no submission of the law of principals is required. . . . On the other hand, if the evidence introduced . . . shows, or raises an issue, that the conduct of the defendant then upon trial is not sufficient, in and of itself, to sustain a conviction, the State’s case rests upon the law of principals and is dependent, at least in part, upon the law of the conduct of another. In such a case, the law of principals must be submitted and made applicable to the facts of the case.
505 S.W.2d 827, 830 (Tex. Crim. App. 1974); Brown v. State, 716 S.W.2d 939, 944 (Tex. Crim. App. 1986) (en banc) (“The McCuin test is still a viable means for determining when a cause should be submitted to the jury on the law of parties.”).
The evidence adduced at trial raises an issue as to the active participation in Gonzalez’s shooting by both appellant and Dunn. The State’s evidence tends to show appellant was the primary actor while the defense’s evidence supports the theory that Dunn was the shooter. Even if appellant did not shoot Gonzalez himself, the State’s evidence shows that appellant asked Dunn to bring a gun to the club, took the gun from the trunk of the car during the fight, and returned the gun to the trunk after Gonzalez was shot. These circumstances support including an instruction on the law of parties. Tarpley v. State, 565 S.W.2d 525, 529 (Tex. Crim. App. 1978) (allowing trial court to look to events before, during, and after the commission of the crime to determine whether an instruction on law of the parties is appropriate); see also Goff v. State, 931 S.W.2d 537, 545 (Tex. Crim. App. 1996) (en banc) (finding party instruction appropriate even though primary actor theory was best supported by the evidence because appellant repeatedly attempted to put forth evidence showing that a non-defendant party had committed or masterminded the crime). We overrule appellant’s fifth point of error.[3]
III. The evidence is legally sufficient to prove appellant killed Gonzalez.
In appellant’s second point of error, he contends the State’s evidence is legally insufficient to prove that he, acting as the primary actor, killed Gonzalez.[4] In a legal sufficiency challenge, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). At trial, the State’s witnesses testified that appellant:
· asked Dunn to bring a gun to Amazonia;
· moved the shotgun Dunn brought from the trunk to the backseat;
· looked as though he were pumping the shotgun in the backseat;
· took the shotgun from the backseat;
· was holding the gun when he was close to Gonzalez; and
· walked back to the car with the gun after Gonzalez was shot and put the gun in the trunk.
We find this evidence legally sufficient to support a finding that appellant, acting as the primary actor, committed murder and overrule appellant’s first point of error.
IV. The evidence is legally sufficient to prove appellant’s guilt under the law of parties.
In appellant’s second point of error, he contends the State failed to introduce legally sufficient evidence to support his conviction under the law of parties. When a person promotes or assists in the commission of an offense, that person shares criminal responsibility. Haddad v. State, 860 S.W.2d 947, 950 (Tex. App.—Dallas 1993, pet. ref’d). It is appropriate to look at events before, during and after the commission of the crime. Goff, 931 S.W.2d at 545. Participation can be inferred from the circumstances and the State is not required to introduce direct evidence. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987) (en banc). Although mere presence is insufficient, standing alone, to prove culpability as a party, it is one circumstance that tends to prove guilt. Id. at 685.
On appeal, appellant contends the evidence is legally insufficient to support his conviction under the law of parties because the State only proved that he was present at Amazonia during the commission of the crime. In this case, however, the State’s evidence shows more than appellant’s mere presence. When viewed in the light most favorable to the prosecution, the evidence also shows that appellant:
· asked Dunn to bring a gun to Amazonia,
· took the gun from the trunk and moved it to the backseat,
· pumped the shotgun,
· took the gun from the car, and
· returned the gun to the trunk after Gonzalez was shot.
Even if Dunn were the actual shooter, a rational jury could find beyond a reasonable doubt that appellant promoted or assisted Dunn in his commission of the offense. We overrule appellant’s second point of error.
V. The evidence is factually sufficient to support appellant’s conviction.
We now turn to appellant’s remaining point of error to determine whether the evidence was factually sufficient to support his conviction under any theory. In a factual sufficiency review, we view all of the evidence in a neutral light to determine if a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). The evidence is factually insufficient if the evidence that supports the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id.
Viewing the evidence that supports the verdict, we find the jury was rationally justified in finding guilt beyond a reasonable doubt. The State’s evidence shows appellant asked Dunn to bring a gun to Amazonia, retrieved the gun from the trunk, pumped the shotgun in the backseat, walked towards the front of the car—where Gonzalez was shot—and then returned the gun to the trunk. A jury could view this evidence and rationally conclude that appellant was guilty of Gonzalez’s murder, either as the primary actor or as a party.
Viewing all of the evidence in a neutral light, we do not find that the contrary evidence is so overwhelming that the beyond-a-reasonable-doubt standard could not have been met. Appellant relies on the following evidence to show the evidence is factually insufficient:
· Dunn said after the shooting, “I got that fool, but I don’t know where. I don’t know where I got that nigger”;
· no one saw appellant shoot Gonzalez;
· appellant voluntarily spoke with police and denied shooting Gonzalez;
· the fatal shot was fired from 1–3 feet away and appellant was seen at least 10–15 feet away from Gonzalez; and
· Dunn’s mother was seen leaving her home with a shotgun wrapped in a towel approximately one week after the shooting.
Appellant also points out that some of the state’s key witnesses had a potential bias for testifying against appellant.[5] We do not find this contrary evidence to be so overwhelming that a rational jury could not have found appellant was guilty beyond a reasonable doubt, either as the primary actor or under the law of parties.
Having concluded that the verdict was factually sufficient, we cannot help but note that this is precisely the type of case—full of conflicting testimony, credibility determinations and plausible explanations of what occurred—that a jury is best situated to decide. As the Texas Court of Criminal Appeals recently noted, in conducting a factual sufficiency review, “[d]eference is given to the jury verdict, as well as determinations involving the credibility and demeanor of witnesses.” Id. at 481. “Because the jury is the judge of the facts” we, as an appellate court, cannot “‘find’ facts or substitute [our] judgment for that of the jury.” Id. at 482.
We overrule appellant’s final point of error and affirm his conviction.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed December 16, 2004.
Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] We point out and address the conflicting testimony in greater detail in our legal and factual sufficiency reviews of the evidence.
[2] Appellant’s third point of error challenges the legal sufficiency of the evidence to support his conviction under the theory of conspiracy. The court did not instruct the jury on conspiracy, nor has appellant demonstrated how or why the jury may have convicted him on this basis. Appellant has not provided any legal authority to show that he was wrongfully convicted on a conspiracy theory nor has he briefed this issue separately from his complaints about his conviction as a party. We therefore decline to address this point of error.
[3] Even if the trial court had erred in instructing the jury on the law of the parties, any error would be harmless because of our determination that the evidence supports appellant’s guilt as the principal actor. Ladd v. State, 3 S.W.3d 547, 564–56 (Tex. Crim. App. 1999) (“[W]here . . . the evidence clearly supports a defendant’s guilt as a principal actor, any error of the trial court in charging on the law of parties is harmless.”) (citing Black v. State, 723 S.W.2d 647, 675 (Tex. Crim. App. 1986)).
[4] The State was not required to prove that appellant fired the fatal shot. The jury’s general verdict of guilty will be upheld if any of the theories that would support the verdict are supported by sufficient evidence. Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (en banc). Nevertheless, we will address appellant’s points of error as he has raised them, theory by theory.
[5] In support, appellant asserts that one witness was charged with aggravated assault for hitting Gonzalez with his vehicle but not sentenced until after he testified in appellant’s trial, that a motion to revoke Dunn’s probation was pending and Dunn was in jail when police initially spoke with him about the case, and that the motion to revoke Dunn’s probation was dismissed after Dunn provided police with information about the evening Gonzalez was shot.