Affirmed and Memorandum Opinion filed June 9, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-03-01171-CR
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BRANDON RAY DUPUIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 924,381
M E M O R A N D U M O P I N I O N
Appellant, Brandon Ray Dupuis, appeals his conviction for the capital murder of Prisileano Rodriguez, for which the jury sentenced him to life in prison. In thirteen points of error, appellant claims that the evidence was legally and factually insufficient to support his conviction and that the trial court erred in admitting appellant’s videotaped statement. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.1. We affirm.
Background
Early in the morning on May 19, 2002, Alfredo Garcia (“Freddy”), Kelly Holloway Mora (“Kelly”), Arcadio Mora (“Arcadio”), and Prisileano Rodriguez (“P.J.”) were in Arcadio’s truck, taking P.J. home. Freddy drove with P.J. in the passenger seat, and Kelly and Arcadio sat in the back, behind the driver’s seat. As the group approached Rodriguez’s apartment complex, they noticed a car parked by a nearby dumpster. They drove past the car, u-turned, and returned in the direction of P.J.’s home.
According to Freddy and Arcadio, as they drove slowly back up the street toward P.J.’s apartment complex, a white male carrying a gun walked in front of the truck. Freddy stopped. Two Hispanic men pulled P.J. out of the passenger door of the truck. They demanded money from him and Arcadio, who remained in the back seat of the truck. Meanwhile, the white male who had walked in front of the truck knocked on the driver side window with a gun, screaming at Freddy to get out of the truck. Another Hispanic man, wearing a bandana over his face, approached and demanded Freddy’s wallet; when he found it empty, he threw it back at Freddy. Freddy was then turned back around toward the truck, kicked, and ordered to get back in the truck. When he did, he was struck across the face and told to drive away before anyone got hurt. Immediately thereafter, he heard a single gunshot, so he put the truck in gear, and began to drive away. In the truck’s rearview mirror, Freddy saw P.J. fall to the ground. He and his friends later called 9-1-1 and returned to the scene, but not before P.J. died at the scene from multiple gunshot wounds. Throughout the robbery, Kelly remained seated on the floor of the truck’s backseat. The group did not know their attackers and were unable to give police information on the shooter and the other robbers aside from their physical descriptions.
After a police investigation lead detectives to appellant and three other individuals, appellant was arrested and charged with the capital murder of Prisileano Rodriguez. Appellant pled not guilty. Following a two-day jury trial, he was found guilty of capital murder and sentenced to life in prison.
Legal and Factual Sufficiency
In twelve points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction for capital murder. We find that the evidence is both legally and factually sufficient to support appellant’s conviction.
We utilize the normal standards in conducting our sufficiency review. Jackson v. Virginia, 443 U.S. 307 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (legal sufficiency standards); Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004) (factual sufficiency standards). Since appellant’s arguments are generally the same under the two standards, we will discuss them together.
The State’s theory of the case was that appellant was guilty of capital murder in the death of Prisileano Rodriguez. The charge authorized the jury to convict appellant under three theories of capital murder: (1) as a principal; (2) as a party under section 7.02(a)(2) of the Texas Penal Code; or (3) as a conspirator under the law of parties as contained in Penal Code section 7.02(b). Tex. Pen. Code Ann. § 7.02(a)(2), (b) (Vernon 2003). The jury in this case returned a general verdict; in that event, when the evidence is sufficient to support a finding of guilt under any of the allegations submitted, the verdict will be upheld. See Alvarado v. State, 912 S.W.2d 199, 225 (Tex. Crim. App. 1995).
Conspiracy
It is well-settled in Texas that a person can be found guilty of capital murder as a conspiring party under section 7.02(b). E.g., Johnson v. State, 853 S.W.2d 527, 535 (Tex. Crim. App. 1992); Cienfuegos v. State, 113 S.W.3d 481, 489‑90 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); see also Montoya v. State, 810 S.W.2d 160, 165 (Tex. Crim. App. 1989) ("the theory of criminal responsibility set forth in Section 7.02(b) has often been applied in capital murder cases").[1] Thus, if the evidence demonstrated that appellant conspired with others to commit robbery and that, during the robbery, one of the co-conspirators committed capital murder, appellant could be held criminally responsible for the capital murder under section 7.02(b) if the murder was in furtherance of the conspiracy’s unlawful purpose and should have been anticipated.
While mere presence at the scene of an offense is insufficient to sustain a conviction as a party to the offense, Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1981), the evidence is sufficient to sustain a conviction under the law of parties if the defendant had been present at the scene of the offense and encouraged its commission by either words or agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). We therefore look to events that occurred before, during, and after the commission of the offense for actions by the appellant indicating an understanding and common design to do the prohibited act. Id.
Appellant testified that he, Rogelio a/k/a Roger Mora (“Roger”), Francisco Perez (“Paco”), and Leonardo Tellez (“Leo”) were out driving around in Leo’s car on the night of May 18th into the early morning of the 19th. The foursome had been drinking and taking Xanax at the Coco Loco Club, but left after the club ejected Roger for “grabbing on a girl.” The ejection enraged Roger, who talked about “shooting the club up and beating on the bouncer” in retaliation. Once the group got in the car and left the club, Roger began telling them that he wanted to rob, or “jack” someone. Roger fired his Glock 40, one of the two guns he had with him that night, out of the moving car window several times and continued to talk about his desire to commit a robbery. The other three attempted to calm Roger down; however, after Roger’s continued insistence, Leo exited the freeway and drove through a neighborhood. Appellant, who had seen Roger shoot another person before, testified that he was afraid of Roger and of what Roger would do to him should he not go along with his plan.
Appellant testified that he fell asleep, but woke up when the car stopped. He saw Roger outside of the car, near the Ford Ranger. Appellant testified that, out of fear for what Roger would do to him, he took the Glock, which he believed to be unloaded, got out of the car, and approached the driver’s side of the truck. Appellant denied stopping the car, demanding money from Freddy, or pointing a weapon at any of the four individuals in the truck. Appellant claimed that Paco was the main actor in the robbery of Freddy but that he did tell Freddy to “get out of here so you don’t get hurt.” Appellant testified that, although he heard multiple shots, he did not see Roger shoot P.J.
Freddy and Arcadio, however, testified that their truck was stopped by a white male with a gun in his hand. Freddy also testified that, although two individuals robbed him on his side of the truck,[2] the “white guy” with the gun, whom he identified as appellant, appeared to be “in charge.” Of the four actors, appellant is the only Caucasian individual; Roger, Leo, and Paco are all Hispanic. Freddy further testified that the individual with the gun wore white “hospital” gloves and that he heard another voice giving orders from the other side of the truck. Appellant testified that Roger later told him that he shot P.J. to ensure that there would be no witnesses who had seen the license plate number of Leo’s car.
In sum, proof existed that appellant conspired with Roger, Paco, and Leo to rob Freddy, Kelly, Arcadio, and P.J. There was also proof that, during the robbery, Roger shot P.J. in furtherance of the conspiracy’s unlawful purpose; that this caused P.J.’s death; and that P.J.’s death should have been anticipated. We therefore conclude that, since a rational trier of fact could have found the elements of the offense beyond a reasonable doubt, the evidence is legally sufficient to support appellant’s conviction as a co-conspirator. See King, 29 S.W.3d at 562.
We also conclude that a neutral review of the evidence does not demonstrate that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination. See Zuniga, 144 S.W.3d at 483-84. Neither is the proof of guilt greatly outweighed by any contrary proof. As sole trier of fact, the jury was free to believe the State’s evidence and disregard appellant’s testimony; we will not second-guess the jury’s determination as to the credibility of the witnesses’ testimony. See Dorsey v. State, 24 S.W.3d 921, 924 (Tex. Crim. App. 2000).
Because the jury in this case returned a general verdict and we find that the evidence is sufficient to support a finding of guilt under the conspiracy allegation, we need not discuss appellant’s challenges to the sufficiency of the evidence as a principal or a party. See Alvarado v. State, 912 S.W.2d at 225. Appellant’s first ten issues are overruled.
Duress
In his eleventh and twelfth issues, appellant argues that the evidence is legally and factually insufficient for the jury to have rejected his affirmative defense of duress. Duress is an affirmative defense to prosecution when a defendant establishes by a preponderance of the evidence that he “engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.” Tex. Pen. Code Ann. § 8.05(a) (Vernon 2003); see also Edwards v. State, 106 S.W.3d 833, 843 (Tex. App.—Dallas 2003, pet. ref’d). Compulsion exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure. Tex. Pen. Code Ann. § 8.05(c) (Vernon 2003); Edwards, 106 S.W.3d at 843. There are two components of immediacy in an imminent threat: (1) the person making the threat must intend and be prepared to carry out the threat immediately; and (2) carrying out the threat must be predicated upon the threatened person’s failure to commit the charged offense immediately. Anguish v. State, 991 S.W.2d 883, 886 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). When the defendant asserts an affirmative defense, the reviewing court considers all the evidence and determines whether the judgment rendered is so against the great weight and preponderance of the evidence as to be manifestly unjust. Edwards, 106 S.W.3d at 843. In making this determination, we must accord due deference to the fact finder’s determinations, particularly those determinations concerning the weight and credibility of the evidence. Id.
We conclude that the evidence is legally and factually sufficient for the jury to have rejected appellant’s affirmative defense of duress. If the facts occurred as appellant claims they did, his waking up and voluntarily getting out of the car to approach the truck, thereby engaging in the conspiracy, meets neither the compulsion nor the immediacy requirement of Penal Code section 8.05. See Tex. Pen. Code Ann. § 8.05 (Vernon 2003).
Appellant’s eleventh and twelfth points of error are overruled.
Admission of the Videotaped Statement
In his thirteenth and final point of error, appellant claims that the trial court erred in admitting his videotaped statement in violation of his Fifth Amendment right against self-incrimination and his Fourteenth Amendment right to due process. U.S. Const. amends. V, XIV. Specifically, he claims that his statement was involuntary based on his allegation that he was improperly induced into making the statement by a promise of a reduced charge. We disagree.
We review a trial court’s ruling on a motion to suppress for an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). At a suppression hearing, the trial judge is the sole trier of facts, the credibility of the witnesses, and the weight to be given to their testimony. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993). Accordingly, we must show almost total deference to a trial court’s resolution of factual questions, especially when those findings are based upon the credibility and demeanor of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The appellate court does not engage in its own factual review, but decides only whether the trial court’s fact findings are supported by the record. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).
After police arrested appellant and took him into custody, Detective Richard Martinez of the Houston Police Department conducted a videotaped interview with appellant. Before the trial began, appellant filed a motion to suppress the admission of the videotape. During the trial, a hearing was held outside the presence of the jury, after which the trial court denied appellant’s motion.
At the hearing, appellant testified that Officer Martinez told his family that if appellant gave a statement, the capital murder charge would be reduced and appellant would receive a bond the same day. Appellant also testified that Martinez told him he was not responsible for Roger Mora’s actions and that, should he give a statement, the District Attorney would drop the charge from capital murder to aggravated robbery. Martinez testified, by contrast, that he made no promises to appellant or statements about appellant’s bond, but promised to confirm that appellant had been cooperative.
In its written findings of fact and conclusions of law, the trial court found that appellant “was not promised anything in return for making his statement nor was he coerced or threatened in any way.” The trial court concluded that appellant’s statement “was given freely, voluntarily, and in accordance with article 38.22 of the Code of Criminal Procedure.”
We also note that Dunn v. State, 721 S.W.2d 325 (Tex. Crim. App. 1986), cited by appellant in support of his position, is not controlling because that case dealt with a violation of the warnings required by the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2003). Appellant does not make a complaint that Martinez failed to properly administer warnings pursuant section 38.22. Furthermore, the reasoning in Dunn was later questioned in Creager v. State, in which the Court of Criminal Appeals stated that the totality of circumstances surrounding the acquisition of a statement, rather than simply whether a statement was induced by an improper promise, should be examined to determine whether the statement was voluntarily given. 952 S.W.2d 852, 856 (Tex. Crim. App. 1997). Because we must show almost total deference to a trial court’s resolution of factual questions, especially when those findings are based on the credibility and demeanor of the witnesses, we conclude that the trial court’s findings of fact are supported by the record and that the trial court therefore did not abuse its discretion in admitting appellant’s videotaped statement. We also note that nothing in the statement differs dramatically from appellant’s own testimony at trial; contrary to what appellant claims, any harm he suffered by having the jury view the videotape is likely minimal, at best. Appellant’s thirteenth and final point of error is overruled.
We affirm the judgment of the trial court.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Memorandum Opinion filed June 9, 2005.
Panel consists of Chief Justice Hedges and Justices Fowler and Frost.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] The death penalty cannot be imposed on someone who was only a party to murder. Johnson, 853 S.W.2d at 535 (citing Cuevas v. State, 742 S.W.2d 331, 343 (Tex. Crim. App. 1987)).
[2] Freddy identified Paco as the bandana-wearing Hispanic male on the driver’s side of the truck.