Affirmed and Memorandum Opinion filed January 23, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-05-00942-CR
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FRANCO GAMBOA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th Judicial District Court
Harris County, Texas
Trial Court Cause No. 986619
M E M O R A N D U M O P I N I O N
Appealing his conviction for murder, appellant Franco Gamboa challenges the trial court=s ruling on his motion to suppress as well as the legal and factual sufficiency of the evidence. We affirm.
I. Factual and Procedural Background
On the night of December 26, 2003, Fausto Montes, Clint Drabeck, and Jason and Ashley Olivas went to a barbeque at Kenneth Wood=s house in southwest Houston. Around 11:30 p.m., Wood saw a vehicle pass by his home for the second time that night. The occupants of the vehicle appeared to look very closely at Wood=s guests. Shortly thereafter, Wood heard several gunshots coming from the direction of the vehicle and immediately got his gun and returned fire. The vehicle instantly drove away. Wood and his guests discovered that in the fray Montes had been shot.
The party guests went inside the house to call for help. In the meantime, Ashley Olivas unsuccessfully attempted to revive Montes through cardio-pulmonary resuscitation. By the time the ambulance arrived a short time later, Montes was dead.
Just after midnight, Alaine Edwards, at her home in the same area of far southwest Houston, heard her doorbell ring. The man at the door, later identified as appellant, asked if he could use her telephone. Edwards refused the request, but stated that she would call someone for him if necessary. Although appellant declined her offer, he lingered outside her home. After hearing voices outside the door, Edwards placed a 9-1-1call. She then summoned her neighbor, John Nash, who was the head of her local ANeighborhood Watch@ program, to come and investigate. Shortly thereafter, Edwards saw Nash approach appellant several houses down the street. After a brief exchange, Nash and appellant parted ways. Nash, however, remained suspicious and decided to look for appellant again.
Meanwhile, Officer James Welborn with the Houston Police Department, who was on patrol in the area, was dispatched to Wood=s residence shortly after midnight. Officer Welborn secured the scene until homicide detective Sergeant James Ramsey and his partner, Sergeant Edward Gonzalez, arrived shortly before 2:00 a.m. Sergeant Ramsey learned that the suspects= vehicle had been located by another police officer, Pamela Tyler, a few miles away. Officer Tyler had discovered a grayish-colored vehicle parked on the wrong side of the street, resting partially in an open field and partially on the sidewalk. The vehicle had significant damage, including several broken windows. When Officer Tyler searched the vehicle, she found a sawed-off shotgun in the backseat, containing a shell that had been fired recently. Tow truck drivers informed Officer Tyler that a man had walked away from the vehicle carrying a gun. Shortly thereafter, the same man began walking toward the abandoned vehicle. Officer Tyler commanded him to the ground but soon discovered that the man was Nash. He suggested that Officer Tyler look for two to three Hispanic males and provided detailed descriptions of them to the officer.
While Officer Tyler continued pursuit, Nash and another neighbor, Edward Williams, searched the neighborhood for the man (appellant) Alaine Edwards had sighted. Williams found him hiding in a large trash can in Edwards=s yard. Holding him at gunpoint until the police arrived, Williams told appellant, Aif you move, I will shoot you.@ Around 1:30 a.m., Officer Ciro Pena, who had been dispatched to the area to assist Officer Tyler, found Williams holding appellant at gunpoint and took appellant into custody. Williams informed Officer Pena that two other individuals had run further down the street. Officer Pena, who was on foot, briefly handcuffed appellant to a light pole while he searched the area for other possible suspects. About that time, Houston Police Officer Dubose arrived at the scene in a patrol car, and Officer Pena placed appellant in the back seat. After taking custody of appellant, Officer Dubose unsuccessfully attempted to pursue another vehicle sighted by Officer Pena, but returned shortly thereafter. Before long, two other suspects were apprehended and also placed in Office Dubose=s patrol car.
Appellant was separated from the other suspects and placed in the back seat of Officer Pena=s patrol car. Appellant admitted that the shotgun found in the vehicle belonged to him. A test of appellant=s hands revealed fresh gunshot residue. Officer Gordon Oran, assigned to canine duty with the Houston Police Department, was also dispatched to the area to search for suspects and weapons. Officer Oran=s dog located a handgun in the bushes near where appellant was found.
While all of this activity was taking place, Sergeant Ramsey, still at Wood=s residence, asked the party guests if they could identify the vehicle involved in the drive-by shooting. Ashley Olivas was taken to the vehicle=s location and positively identified the vehicle as the one involved in the drive-by shooting. By the time Sergeant Ramsey arrived with Olivas, three suspects had been apprehendedCappellant, Raymond Duran, and Jose Aguilera. Sergeant Ramsey spoke to Duran and learned that he had been the driver of the vehicle. Duran consented to a search of the vehicle and offered a statement.
Immediately after speaking to Duran, around 3:00 a.m., Sergeant Ramsey began interrogating appellant. Appellant was very cooperative and openly offered information about what had transpired, such as the placement of the individuals in the vehicle at the time of the shooting. During this brief talk, Sergeant Ramsey learned that appellant was only sixteen years old, and immediately terminated the discussion. Sergeant Ramsey next questioned Jose Aguilera, who was uncooperative and refused to offer a statement. However, a test of Aguilera=s hands revealed the presence of gunshot residue.
After securing the scene, Sergeant Ramsey immediately drove appellant to Magistrate Judge Villagomez=s chambers, which functioned as a juvenile processing office. At 4:40 a.m., Judge Villagomez read appellant his rights in both English and Spanish. After the warnings, Sergeant Ramsey transported appellant to the main police station at 1200 Travis, in downtown Houston. Appellant was placed in interview room number 6 on floor 6, which also was designated as a juvenile office. Sergeant Ramsey interviewed appellant from 5:14 a.m. until 5:36 a.m.. During this brief interview, appellant admitted that he fired one round from a double-barrel shotgun and that Aguilera had fired at least two or three rounds from a handgun. Immediately after the interview, Sergeant Ramsey transported appellant to the juvenile detention center in southeast Houston.
Appellant was charged with the felony offense of murder. He pleaded Anot guilty@ and sought to suppress the audio-taped statements. The trial court refused to suppress the statements. A jury found appellant guilty as charged, and assessed punishment at twenty-three years= confinement in the Institutional Division of the Texas Department of Criminal Justice.
III. Issues and Analysis
A. Did the trial court err in denying the motion to suppress appellant=s audiotape recorded in-custody statement?
In his first issue, appellant contends the trial court erred in denying his motion to suppress. More specifically, appellant, a juvenile at the time of the offense, contends that Sergeant Ramsey failed to comply with section 52.02(a) of the Texas Family Code by failing to take him before an Aofficial@ designated by the juvenile court. The State responds that appellant waived this complaint because he failed to argue, during the motion-to-suppress hearing, that Judge Villagomez was not an official designated by the juvenile board. In the alternative, the State contends that the statute does not require that the juvenile be taken before an official designated by the juvenile board, but only that the juvenile be taken before the office or an official designated by the juvenile board. See Tex. Fam. Code Ann. ' 52.02(a)(2) (Vernon Supp. 2006).
As a threshold matter, we must determine whether appellant preserved this issue for our review. During the motion to suppress hearing, appellant made the following arguments:
Counsel: Very briefly, I believe that the manner in which Mr. Gamboa was picked up upon his arrest sometime after midnight C he was taken into custody by a police officer. He is handcuffed around the light pole, I believe, for some period of time. My client says 10, 15 minutes. The officer says maybe 30 seconds, of course.
The judge is C it appears that 52.02(a) has been violated in that no effort was made to take, first of all, to notify the guardian or parent of Franco Gamboa. It was not until 7:25 or 7:15 in the morning of the 27th, some six, seven hours after he had been detained.
He was not taken immediately as the code requires, that without unnecessary delay, and he has beenChe has to be taken to a juvenile processing facility. He was detained. He was taken to the scene of where the accident occurred on Orem Street. He was there for a while, sitting in the back of the vehicle, a police officer=s unit, later on transferred from that unit, started to be interview by Officer Ramsey.
Once he realized that he was dealing with a juvenile, according to his testimony, he stopped asking him questions, and soon thereafter, not immediately, but soon thereafter took him to the magistrate. He still had to tie ends at the scene that he was in charge with on Orem Street. And it was sometime, sometime after that that he proceeded to take him to the magistrate, I believe Judge Villagomez, at 49 San Jacinto.
No effort was made to make contact with parents or guardians or anyone at that has custody of Franco Gamboa at that time. And according to 52.02 of the Family Code, it states very clearly that without unnecessary delay and without first taking the child to any place other than a juvenile processing officer, designated under Section 52.05, they must do the following then. That section enumerates six things that the officers must do. None of which were done in this case.
But instead Mr. Gamboa is driven around by several officers. We know Officer Pena and Ramsey are involved. And we also know of another officer that also transported him out there at the scene at the, at those hours of the early morning.
We feel, your Honor, that 52.02 has been violated; and as a result, any confession obtained of the violation we feel should be suppressed. Thank you, your Honor.
. . .
Counsel: Your Honor, going back to Comer v. State and other cases that had resulted from that decision, again, very strictly applying 52.02(a), the Court in Comer v. State, about ten years ago, in explaining the language of 52.02 dictated what an officer must do, quote, without unnecessary delay when he takes a child into custody. And in that case the Court concluded that the clear intent of the statutory scheme as a whole from this point on is that the decision as to whether further detention is called for is to be made not by law enforcement personal but by the intake or other authority, other authorized officer, of the court.
It appears that the legislature intended to restrict involvement of law enforcement officers to initial seizure and prompt release of commitment of the juvenile offender.
. . .
I submit to the Court that through the testimony of the officers that testified and also the witnesses that Mr. Gamboa presented there is certainly a violation of the sections of the Family Code that we have alluded to. And for those reasons we ask this Court to suppress the confession or statement that was obtained from Mr. Gamboa while he was in custody, and his rights under the Family Code were being violated.
The Court: That will be denied.
Within the above exchange, appellant does not make the complaint he now makes on appeal C that Judge Villagomez was not an official designated by the juvenile board. When the appellate complaint fails to comport with the trial objection, nothing is preserved for review. See Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005). Because appellant=s complaint on appeal does not comport with the arguments made in the trial court, it is waived. See Pham v. State, 125 S.W.3d 622, 629 (Tex. App.CHouston [1st Dist.] 2003) (concluding that error was not preserved when defendant failed to allude to the failure of the police to take him promptly to particular room at police station specifically designated as juvenile processing office upon arrest for murder), aff=d, 175 S.W.3d 767 (Tex. Crim. App. 2005). However, even if appellant had not failed to preserve error, we would find no merit in his first issue.
Appellant=s complaint is that once Sergeant Ramsey decided to take him into custody, he was required to cease any further investigation of the case, and immediately take him to an official designated by the juvenile board. Appellant contends that because the record fails to show that Judge Villagomez was an Aofficial@ designated by the juvenile board, appellant=s rights were violated, and, therefore, the oral statements he made to Sergeant Ramsey should have been suppressed. Appellant=s interpretation of the statute is incorrect.
Appellant relies on Comer v. State, 776 S.W.2d 191 (Tex. Crim. App. 1989), in which the Court of Criminal Appeals reviewed whether a written statement by a juvenile should be suppressed when section 52.02(a) had not been followed but the statement appeared to be admissible under section 51.09(b)(1). Id. at 194B95. In that case, three hours had elapsed from the time the juvenile was taken into custody until he was transported to a juvenile detention center. Id. In the interval, the juvenile was taken to a justice of the peace from whom he received the appropriate Family Code admonishments and then made a full confession in writing before the justice of the peace. Id. On review, the Court of Criminal Appeals concluded that the three‑hour time‑period was an unnecessary delay and that the written statement was inadmissible, notwithstanding section 51.09(b)(1). Comer, 776 S.W.2d at 196.[1] The high court stated that Title Three of the Family Code contained competing interests: to protect Athe public from the unlawful acts of children while concomitantly insulating those children from the stigma of criminality and providing for their welfare and edification.@ Id. at 193. The Comer court then held that, A[W]here the officer deems it necessary to take the child into custody, section 52.02(a) . . . dictates what he must then do >without unnecessary delay and without first taking the child anywhere else.= @ Id. at 194. Because section 52.02(a)=s provisions were not followed, and the taint of illegality had not dissipated, there was a violation of article 38.23 of the Code of Criminal Procedure, and the court remanded the case for a harm analysis. Id. at 196‑97. Appellant does not complain that his rights were violated because there was an Aunnecessary delay@ in taking him to a juvenile processing office or an official designated by the juvenile board, only that Judge Villagomez was not an official designated by the juvenile board.
Subject to an exception that does not apply to the facts of this case, under section 52.02(a), Aa person taking a child into custody, without unnecessary delay and without first taking the child to any place other than a juvenile processing office designated under Section 52.025,@ shall do one of the following:
(1) release the child to a parent, guardian, custodian of the child, or other responsible adult upon that person=s promise to bring the child before the juvenile court as requested by the court;
(2) bring the child before the office or an official designated by the juvenile board if there is probable cause to believe that the child engaged in delinquent conduct, conduct indicating a need for supervision, or conduct that violates a condition of probation imposed by the juvenile court;
(3) bring the child to a detention facility designated by the juvenile board;
(4) bring the child to a secure detention facility as provided by Section 51.12 (j);
(5) bring the medical facility if the child is believed to suffer from a serious physical condition or illness that requires prompt treatment; or
(6) dispose of the case under Section 52.03.[2]
Tex. Fam. Code Ann. ' 52.02(a). (emphasis added). The plain language of this section does not require that the child must be taken before an official designated by the juvenile board, but rather that he be brought before the office or an official designated by the juvenile board. The officers complied with the plain language of section 52.02(a). Because Sergeant Ramsey was the only homicide detective at the scene, he could not leave with appellant until the scene was secure, which took thirty to forty minutes. As soon as Sergeant Ramsey had ensured that the other homicide officers were on their way to collect evidence and process the scene, he took appellant to Judge Villagomez=s chambers, which functioned as a juvenile processing office. While there, appellant was given his warnings. Following these warnings, appellant was taken to another designated juvenile processing office, where his statement was taken. Immediately thereafter, appellant was transported to a juvenile detention center. Based on this evidence, we conclude that it was not necessary that Judge Villagomez be an official designated by the juvenile board. Cf. Baptist Vie Le v. State, 993 S.W.2d 650, 655 (Tex. Crim. App. 1999) (concluding that juvenile=s statement should have been suppressed because there was nothing in the record to support that the homicide division at the Houston Police Department was an office designated by the juvenile court under section 52.02(a)).[3] Because appellant was taken to a juvenile processing office within the meaning of the statute, it is not necessary that Judge Villagomez was an official designated by the juvenile board, and, therefore, appellant=s rights under section 52.02(a) were not violated. Accordingly, we overrule appellant=s first issue.
B. Is the evidence legally and factually sufficient to support appellant=s conviction for murder?
Under his remaining issues, appellant essentially contends that the evidence is legally and factually insufficient to support his conviction for murder as a principal actor or as a party to the offense.[4]
When evaluating the legal sufficiency of the evidence, we view the evidence 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, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). The standard is the same for both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App .1995). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses. See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). We review all of the evidence admitted at trial, and resolve any inconsistencies in the evidence in favor of the verdict. Id.
When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is Aclearly wrong@ or Amanifestly unjust@ because the great weight and preponderance of the evidence contradicts the jury=s verdict. Watson v. State, 204 S.W.3d 404, 414B17 (Tex. Crim. App. 2006). It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury=s resolution of that conflict. See id. at 417. If this court determines that the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction. Id. at 414B17. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. See id; Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
The indictment in this case alleged the following:
The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, FRANCO GAMBOA, hereinafter styled the Defendant, heretofore on or about DECEMBER 27, 2003, did then and there unlawfully, intentionally and knowingly cause the death of FAUSTO MONTES, hereinafter called the Complainant, by SHOOTING THE COMPLAINANT WITH A DEADLY WEAPON, NAMELY A FIREARM.
It is further presented that in Harris County, Texas, FRANCO GAMBOA, hereinafter styled the Defendant, heretofore on or about DECEMBER 27, 2003, did then and there unlawfully intend to cause serious bodily injury to FAUSTO MONTES, hereinafter called the Complainant, and did cause the death of the Complainant by intentionally and knowingly committing an act clearly dangerous to human life, namely BY SHOOTING THE COMPLAINANT WITH A DEADLY WEAPON, NAMELY A FIREARM.
To sustain a guilty verdict, the State must prove the elements of the offense as set forth in the jury charge. Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992). The charge in this case authorized conviction on two theories C law of the parties or direct liability:
The defendant, Franco Gamboa, stands charged by indictment with the offense of murder, alleged to have been committed on or about the 27th day of December, 2003, in Harris County, Texas. The defendant has pleaded not guilty.
Our law provides that a person commits the offense of murder if he intentionally or knowingly causes the death of an individual; or if he intends to cause serious bodily injury and intentionally or knowingly commits an act clearly dangerous to human life that causes the death of an individual.
. . .
All persons are parties to an offense who are guilty of acting together in the commission of the offense. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible or both.
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. Mere presence alone will not constitute one party to an offense.
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.
When, as in this case, the jury returns a general verdict of Aguilty@ and the evidence is sufficient to support the finding under any of the allegations submitted, the verdict will be upheld. Fuller v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992). Appellant contends that the evidence is insufficient to support his conviction either as a principal actor or as a party to the offense.
There is no dispute that the gun used by appellant was not the gun that actually killed Montes. Thus, the inquiry in this case is whether the evidence is legally and factually sufficient to establish that appellant was a party to the offense. If we conclude that it is, appellant=s conviction will stand. See Davis v. State, 195 S.W.3d 311, 319, n.4 (Tex. App.CHouston [14th Dist.] 2006, no pet.) (concluding that if the court finds the evidence to be sufficient under one particular theory, it need not address appellant=s remaining points to determine whether the evidence is also sufficient under the other theories).
A person commits an offense if he: (1) intentionally or knowingly causes the death of an individual; (2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or (3) commits or attempts to commit a felony, other than manslaughter, and in the course or and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. Tex. Pen. Code Ann. ' 19.02(b) (Vernon 2003). The specific intent to kill may be inferred from the use of a deadly weapon. Flanagan v. State, 675 S.W.2d 734, 744 (Tex. Crim. App. 1984) (op. on reh=g). A firearm is a deadly weapon. See Tex. Pen. Code Ann. ' 1.07(a)(17)(A) (Vernon 1994). A person acts intentionally with respect to the result of his conduct when it is his conscious objective or desire to cause the result. Id. ' 6.03(a). A person acts knowingly with respect to the result of his conduct when he is aware his conduct is reasonably certain to cause the result. Id. ' 6.03(b). A jury may infer intent from the acts and words of the defendant, the manner in which the offense was committed, the nature of the wounds inflicted, and the relative size and strength of the parties. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995).
A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.@ Tex. Pen. Code Ann. ' 7.01(a) (Vernon 2003). AA 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.@ Id. ' 7.02(a)(2).
When a party is not the Aprimary actor,@ the State must prove conduct constituting an offense plus an act by the defendant done with the intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985). Evidence is sufficient to sustain a conviction under the law of parties if it shows that the defendant was physically present at the commission of the offense and encouraged the commission of the offense either by words or other agreement. Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985).
An agreement among parties to act together in common design can seldom be proven by words. Consequently, the State often must rely on the actions of the parties, shown by direct or circumstantial evidence, to establish an understanding or a common design to commit the offense. Miller v. State, 83 S.W.3d 308, 314 (Tex. App.CAustin 2002, pet. ref=d). The agreement, if any, must be made before or contemporaneous with the criminal event, but in determining whether one has participated in an offense, the court may examine the events occurring before, during and after the commission of the offense. Id. Circumstantial evidence may suffice to show that one is a party to an offense. Wygal v. State, 555 S.W.2d 465, 469 (Tex. Crim. App. 1977). Though mere presence at the scene is not enough to sustain a conviction, such facts may be considered in determining whether an appellant was a party to the offense. Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979) (op. on reh=g); Scott v. State, 946 S.W.2d 166, 168 (Tex. App.CAustin 1997, pet. ref=d).
The evidence in the record shows that appellant=s role in the offense went far beyond mere presence at the scene. Lysette Alecio, appellant=s girlfriend and the mother of his children, testified that on the evening of the murder, they went to Raymond Duran=s home. While she stayed in the vehicle, appellant went inside for about five minutes. Appellant then returned to the vehicle and drove toward her home. Aguilera and Duran followed them. Around 11:30 p.m., Duran, Aguilera, and appellant left Lysette=s home. Although Lysette did not know where they went, the evidence shows that appellant and Duran fired their guns at a group of people at a barbeque, killing Montes.
An autopsy of Montes=s body revealed that he suffered a gunshot wound to the right side of his chest. The bullet penetrated through his right lung, heart, liver, and his left lung. A bullet was found in Montes=s clothing near his left armpit. In addition, a .45 caliber shell casing was found near a vehicle parked in Wood=s driveway. A bullet fragment and some shotgun wadding was recovered from Wood=s truck.
Appellant admitted to owning the shotgun found inside the vehicle involved in the drive-by shooting. Appellant also admitted to being in the vehicle at the time of the shooting. Appellant was found hiding in a trash can near the location where the vehicle was abandoned. Though flight alone is not enough to sustain a conviction, the fact may be considered. Valdez, 623 S.W.2d at 321.
The evidence supports the reasonable inference that appellant knew that his firing of his weapon in the general direction of a group of people, including Montes, was reasonably certain to result in a death. See Flanagan, 675 S.W.2d at 736 (concluding intent to kill was established by evidence that defendant picked up a gun in the backseat, leaned out the vehicle=s window and shot the weapon at the pickup truck behind him); Rojas v. State, 171 S.W.3d 442, 447 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (holding evidence sufficient to prove appellant intended for someone to die when he shot his weapon in the general direction of a group of people including a four-year-old). Even if appellant=s own weapon did not directly cause the death of the complainant, the evidence supports the finding that appellant was guilty as a party to the offense. See Cain v. State, 976 S.W.2d 228, 234 (Tex. App.CSan Antonio 1998, no pet.) (finding defendant guilty under law of the parties and stating that Athe fortuity that only a bullet from the defendant=s partner struck the victim, and the fact that the defendant was a poor marksman does not absolve the defendant of criminal responsibility@).
A rational jury could find that appellant was acting in concert with the others in the vehicle and that the individuals in the vehicle were acting together to intentionally and knowingly caused the death of someone, or that they intended serious bodily injury and caused death by an act clearly dangerous to human life, namely shooting into a crowd of people. See Hoang v. State, __S.W.3d.__, No. 01-04-01139-CR, 2006 WL 1228655, at *4B6 (Tex. App.CHouston [1st Dist.] May 4, 2006, pet. ref=d) (concluding that evidence was sufficient to support conviction for murder as party to offense when defendant assisted shooter by giving him a firearm, drove the shooter parallel to the victim=s car, and hid all evidence of the crime); Hernandez v. State, 198 S.W.3d 257, 266B67 (Tex. App.CSan Antonio 2006, pet. ref=d) (finding evidence sufficient to establish that defendant was a party when defendant knew that physical force would be used, ignored the victim=s screams while assuming the role of a lookout, helping dispose of the body, and discard other evidence of the crime). Because a rational trier of fact could find the essential elements of murder beyond a reasonable doubt, there is legally sufficient evidence to support the verdict.
In support of his factual-sufficiency challenge, appellant asserts that evidence does not show that he acted with the intent to cause death, or for any other party with him to cause the death of the complainant. We view all of the evidence in a neutral light. Watson, 204 S.W.3d at 414. Appellant directs us to his statement given to Sergeant Ramsey in which he expressed anger and his desire to frighten the guests at the barbeque, but never intended to kill anyone. Appellant contends that he fired either in the air or away from where the people were standing. Thus, he contends that he did not anticipate that the complainant, or any other individual, would be shot and killed. The jury, as fact-finder, was free to disbelieve this evidence, and believe the overwhelming amount of evidence supporting the conviction. Cain, 958 S.W.2d at 407. This evidence includes the following: (1) appellant went to Duran=s home earlier in the evening to have some Adiscussion@; (2) he left his girlfriend=s home with Duran and Aguilera around 11:30 p.m.; (3) he was in the vehicle at the time of the shooting; (4) he owned the shotgun found in the vehicle; (5) he was found hiding in a trash can in a location near the abandoned vehicle; and (6) he had fresh gun residue on his hands. A participant in the drive-by shooting, appellant fired a weapon into a crowd of people while he was a passenger in the vehicle. The victims were standing in plain sight in the yard and appellant fired his weapon directly at them. At the very least, appellant is guilty as a party to the shooting of the complainant. See Patterson v. State, 950 S.W.2d 196, 202 (Tex. App.CDallas 1997, pet. ref=d) (concluding that evidence was factually sufficient to support murder conviction of defendant, who, along with another person, shot at an automobile in which the victim was riding); Garcia v. State, 827 S.W.2d 25, 26B27 (Tex. App.CCorpus Christi 1992, no pet.) (finding murder conviction sufficiently supported by the evidence that the defendant had personally stabbed the victim even though the evidence was conflicting as to which of three suspects involved was the actual stabber); Polk v. State, 710 S.W.2d 610, 611 (Tex. App.CDallas 1986, pet. ref=d) (concluding that the evidence at a minmum shows that the defendant was a party to the offense without proof of whether he actually pulled the trigger).[5] Because the verdict is not against the great weight and preponderance of the evidence and is not clearly wrong or unjust, the evidence is factually sufficient to support the murder conviction.
Having found no merit in appellant=s challenges to the legal and factual sufficiency of the evidence, we overrule appellant=s remaining issues two through seven.
We affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed January 23, 2007.
Panel consists of Justices Frost, Seymore, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] We note that section 51.095 is the current section governing the admissibility of the statement of a child.
[2] Section 52.025 provides as follows:
(a) The juvenile board may designate an office or a room, which may be located in a police facility or sheriff's offices, as the juvenile processing office for the temporary detention of a child taken into custody under Section 52.01. The office may not be a cell or holding facility used for detentions other than detentions under this section. The juvenile board by written order may prescribe the conditions of the designation and limit the activities that may occur in the office during the temporary detention.
(b) A child may be detained in a juvenile processing office only for:
(1) the return of the child to the custody of a person under Section 52.02(a)(1);
(2) the completion of essential forms and records required by the juvenile court or this title;
(3) the photographing and fingerprinting of the child if otherwise authorized at the time of temporary detention by this title;
(4) the issuance of warnings to the child as required or permitted by this title; or
(5) the receipt of a statement by the child under Section 51.095(a)(1), (2), (3), or (5).
(c) A child may not be left unattended in a juvenile processing office and is entitled to be accompanied by the child's parent, guardian, or other custodian or by the child's attorney.
(d) A child may not be detained in a juvenile processing office for longer than six hours.
Tex. Fam. Code Ann. ' 52.025 (Vernon Supp. 2006).
[3] In Baptist, the Court of Criminal Appeals considered whether section 52.02(a) was violated when the officer took the juvenile to a magistrate and then directly to the homicide division in the Houston Police Department. 993 S.W.2d at 655. The high court concluded that because the homicide division was not a juvenile processing center and did not satisfy any of the other statutory options in section 52.02(a), the statement taken was inadmissible. Id; see also Gonzales v. State, 67 S.W.3d 910, 912B13 (Tex. Crim. App. 2002).
[4] Because appellant=s issues two through seven are similar and require the same analysis, we address them together.
[5] Murder is a Aresult of conduct@ offense. Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994). A person commits the offense of murder if he intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen. Code ann. ' 19.02(b)(2) (Vernon 2003). A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that: (1) a different offense was committed; or (2) a different person or property was injured, harmed, or otherwise affected. Tex. Pen. Code ann. ' 6.04(b)(2) (Vernon 2003). Under the statute, a defendant can be held Acriminally responsible,@ that is, guilty for the death of another even if he did not intend to harm the victim, so long as he caused the actual victim=s death while acting with the intent to kill a different person. Chimney v. State, 6 S.W.3d 681, 700 (Tex. App.CWaco 1999, pet. ref=d). Thus, even if appellant did not intend to kill anyone or intended to kill another person, he would not be absolved of criminal responsibility. Id.