Affirmed and Memorandum Opinion filed July 22, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00554-CR
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SALVADOR ZAVALA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 954730
M E M O R A N D U M O P I N I O N
Salvador Zavala was convicted of murder and sentenced to confinement for life in the Texas Department of Criminal Justice, Institutional Division. Zavala challenges his conviction, asserting that the evidence was legally and factually insufficient to support the verdict. We affirm.
I. Factual and Procedural Background
On the evening of July 2, 2003, a tow-truck driver was returning home after his shift when he noticed a truck stopped on the road. He did not see anyone near the truck and decided to stop to see if he could render aid. After seeing Aa Hispanic man with his eyes halfway open and halfway shut@ in the truck=s cab, the tow-truck driver called 911. Officer Patterson of the Houston Police Department testified that he received the call around 9:55 p.m., and upon arriving at the scene, he saw a red Ford pick-up parked on the shoulder. Inside the truck, he first saw just one male with gunshot wounds. Upon opening the passenger door, he saw two more males, who had also been shot. Officer Patterson closed the door and secured the scene. Officer Peters of HPD=s Homicide Division arrived at the scene around 10:30 p.m. He testified that Athere were three dead men in the [truck=s] backseat,@ all gunshot victims. Consistent with the gunshot wounds, Officer Peters noticed Aa lot of firearms evidence, holes and bullets.@ He also noticed that the hands of all three men were bound. ATwo of the men had their hands bound with twine and the third had something similar to flex-cuffs on his hands.@ When asked to describe flex-cuffs, he testified that they are made with Aa plastic strip, much like an electrician would use to tie wires together.@
Officer Duncan worked this case as a crime-scene investigator. He testified that upon arriving at the scene, he immediately noticed numerous Asigns of violence.@ All three men had been shot numerous times. He located 14 pieces of ballistics evidence inside the truck: three fired bullets and 11 cartridge casings. He recovered two calibers of cartridge casings: nine-millimeter and .40-caliber. He testified that it was Asafe to say that the shots were fired inside the vehicle because all the cartridge cases were inside the vehicle.@ He was unable to obtain fingerprints from the cartridge cases, and could not remember if he tried to lift a fingerprint from the keys which were found near the truck. The truck, which was owned by a couple not related to the investigation, was towed to a different location where it was processed. The three men were eventually identified as Oliver Amilpas, Juan Arturo Garcia, and Eladio Trevino.
Amilpas=s wife testified that she last saw her husband around 8:30 p.m. on the night he died. Earlier that day, she saw two men arrive at her home in a black Dodge Intrepid. Although the men stayed outside, she was able to identify Moises Borja in a photo line-up as the driver. She gave a description of the passenger; however, she was unable to choose Zavala=s picture out of a photo line-up. Amilpas told his wife that he was going to sell 300 pounds of marijuana that day. A few hours after the Intrepid arrived, a beige car, a red truck, and another black car arrived.
Garcia=s wife testified that her husband drove a beige car and that after the incident, another man, Rick Soto, told her where to find the car. Trevino=s wife admitted that her husband had been involved in drug trafficking for several years. She testified that she last saw her husband around 7 or 8 p.m. on July 2, and that he drove a black Grand Prix.
Maria Moreno, Amilpas=s sister, testified that on the afternoon of July 2, she saw a Atall young man@ get out of a dark car at Amilpas=s home. Her brother told her that he Awas going to do business with him.@ At trial, Moreno identified Zavala as the man she saw with her brother.
After the incident, Jose Aleman-Salmon, who was Amilpas=s cousin by marriage, met with other family members at Amilpas=s mother=s house to grieve and talk about what happened. At this gathering, Aleman-Salmon heard that one man seen with Amilpas on July 2 was A[t]all, wore jewelry, short haircut, and drove a black Intrepid.@ At the time he heard it, the description reminded Aleman-Salmon of Zavala. Aleman-Salmon had known Zavala for a couple of years. He testified that the two were involved in illegally programming and selling satellite cards and prepaid cell phones. Before the killing, Aleman-Salmon visited Zavala=s shop Aabout twice a week or so.@ He testified that he did know of anyone else working in the shop besides Zavala.
Aleman-Salmon also knew Borja through Zavala. On several occasions, Aleman-Salmon saw Zavala in possession of a nine-millimeter Beretta. He testified that Zavala Awould always have it on him. Even when he was leaving the shop, he=d take it out of the desk and put it on his waistband or put it in the backseat of the car.@ He also testified that Zavala mentioned that he wanted to Aset up like a deal to rob people . . . a drug deal.@ However, he admitted that he did not think Zavala was serious. Officer Peters investigated the small shop where Zavala worked. Inside the shop, Officer Peters found Aflex-like cuffs.@ He admitted that he did not compare the flex-cuffs found in the shop to those found at the scene to determine if they were produced by the same manufacturer.
Dr. Dwayne Wolf performed the autopsy on Garcia and reviewed the autopsies performed on Trevino and Amilpas. He testified that Trevino Ahad a ligature around one of his wrists, specifically around the left wrist. It was a plastic-type ligature.@ Trevino had eight separate gunshot wounds. Garcia had ten separate gunshot wounds, nine perforating and one penetrating. Amilpas had five separate gunshot wounds. Dr. Wolf testified that all three men were homicide victims and each died of multiple gunshot wounds.
On July 4, 2003, Officer Polzine, of the City of Rice Police Department, stopped a Ford Windstar on Interstate 45 (Rice is about 45 miles south of Dallas on Interstate 45). Zavala was the passenger and Borja was the driver. The stop occurred around 8:00 p.m. when Officer Polzine used his radar to confirm that the van was traveling at 81 miles per hour; the speed limit was 70. When Officer Polzine activated his lights, his dash-video camera came on with audio. When Borja rolled down the window, Officer Polzine Anoticed that there was a strong odor of what [he] believed to be marijuana.@ After asking Zavala to step out of the vehicle, he patted Zavala down to make sure he did not have any weapons. As a result of the pat down, Officer Polzine discovered marijuana in Zavala=s pocket. Officer Polzine arrested Zavala and handcuffed him. He then obtained consent from Borja to search the vehicle.
During the search he found a loaded nine-millimeter Beretta under the passenger seat. He also found five bales of marijuana, totaling 178 pounds. Additionally, he found several cell phones and a black bag with a large amount of cash. AIt was in three stacks approximately three to four inches tall with rubber bands around it. A hundred-dollar bill on top, hundred-dollar bill on bottom and one-dollar bills all between them.@ A total of $2,350 was recovered, including $335 found on Zavala. In the police car, Zavala asked Officer Polzine if it was the smell that gave them away. When Officer Polzine made a comment about his height, Zavala said he was 6 feet, 6 inches tall.
A wrecker company was called to pick up the Windstar. Consistent with company policy, one employee drove the wrecker and one employee drove the Windstar back to the impound facility. The employee driving the Windstar testified that as she was making a turn, Aa handgun fell out from underneath the dashboard and fell onto [her] right foot.@ This handgun, a .40-caliber Beretta, was collected and placed into evidence. Officer Peters eventually received the two weapons and the cell phones recovered from the minivan, as well as the fingerprint cards for Zavala and Borja. He did not dust the guns for fingerprints.
A member of the HPD Latent Prints Identification Division testified that he processed the red truck inside and out. He found four sets of shoe prints, but they were insufficient to provide an identification. He Adeveloped 11 fingerprints on the outside surface@ of the truck, and lifted from one inside the truck. After comparing those prints to the prints from Zavala and Borja, he concluded that he had Aone identifiable print, a left index fingerprint that matched Salvador Zavala.@ On cross, he admitted that he did not have an entire print and that he had no way of determining how long the print had been on the truck.
A firearms examiner with the HPD Crime Laboratory testified that she received a nine-millimeter Luger Beretta Model 92FS and a .40-caliber Smith & Wesson Beretta Model 96 Centurion. She received 16 rounds of ammunition per firearm, and used three rounds with each firearm for test fires. After comparing the test fires with the bullet parts collected in the case, she was able to confirm that all except two of the parts matched one of the two weapons. Of the remaining two parts, one was unsuitable for testing and one was insufficient for testing. She matched the majority of the bullet parts to the nine-millimeter Beretta. On cross, she admitted that a nine-millimeter Beretta is a popular gun and its profile resembles that of other models.
Next, Zavala=s former cell-mate testified about conversations he had with Zavala. Zavala told him that he was there Abecause of three deaths, three murders.@ Zavala said he was stopped in Dallas, and that Awhen [the police] stopped him, they found a gun that . . . was dirty. . . . It had three murders.@ Zavala also said that Ahe couldn=t really talk because a lot of things were going to come out that could hurt him.@ Zavala told his cell-mate that the sister of one of the deceased saw him with her brother Abefore I did away with him.@ Finally, Zavala said Athat=s what happen[s] to people that [are] involved in this type of business . . . and don=t do the business the way they should do it.@ Zavala=s former cell-mate admitted that he was in jail for a felonyCtampering with a government instrumentCand that he had another case pending for possession of cocaine. He also admitted that he came to the United States illegally, had a history of criminal offenses on his record, and was receiving leniency in return for his testimony.
Finally, Zavala=s mother testified that Borja drove a black car similar to Zavala=s car. She also testified that sometime before July 2, 2003, Zavala asked to borrow her van because his Intrepid was making noise. According to Zavala=s mother, Zavala was driving the Windstar on July 2. She never saw a firearm or pistol in Zavala=s room or at his shop. She also testified that her son called her at 9:00 p.m. on July 2 and that there was music in the background. On cross, she admitted that she did not know where her son was, what he was doing, or whom he was with when she received the phone call.
After being indicted, Zavala entered a plea of not guilty and was tried by a jury. The jury found Zavala guilty of capital murder and the court assessed punishment at confinement for life in the Texas Department of Criminal Justice, Institutional Division. This appeal followed.
II. Analysis
A person commits capital murder if he murders more than one person during the same criminal transaction. Tex. Penal Code Ann. ' 19.03(a)(7)(A) (Vernon 2003). To convict Zavala of capital murder, the jury had to find beyond a reasonable doubt that Zavala murdered Eladio Trevino and Oliver Amilpas by shooting them with a firearm during the same criminal transaction. See id. The jury was not asked to determine whether Zavala murdered Juan Arturo Garcia. Zavala asserts that the evidence is legally and factually insufficient to support the verdict. We disagree.
When 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). If any rational trier of fact could have found the crime=s essential elements beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). We do not resolve any conflict of fact, weigh any evidence, or evaluate any witness=s credibility, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). The jury may choose to believe or disbelieve any portion of a witness=s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume that the trier of fact resolved conflicts in the prevailing party=s favor. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). We may overturn the verdict only if it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
Zavala asserts that the evidence does not show that Zavala himself pulled the trigger on either of the weapons. However, eyewitness testimony is unnecessary as long as other evidence establishes guilt for the offense. Greene v. State, 124 S.W.3d 789, 792 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d) (holding that A[i]dentity of a perpetrator can be proved by direct or circumstantial evidence; eyewitness identification is not necessary@). Eladio Trevino, Oliver Amilpas, and Juan Arturo Garcia were involved in a marijuana deal on the evening of July 2, 2003. All three were found dead that same evening in the backseat of a red truck. Zavala=s left index fingerprint was found on the passenger side of the truck. Each man had multiple gunshot wounds.
The crime-scene investigator recovered two calibers of cartridge casings: nine-millimeter and .40-caliber. Aleman-Salmon testified that he saw Zavala in possession of a nine-millimeter Beretta on multiple occasions before this incident, and that Zavala Awould always have it on him.@ He also testified that Zavala mentioned that he wanted to Aset up like a deal to rob people . . . a drug deal.@ Two of the men had their hands bound behind them with twine, and one with flex-cuffs. The jury heard a description the material used for flex-cuffs and that such material was found at Zavala=s place of business. Amilpas=s sister testified that she saw her brother with Zavala on July 2. Aleman-Salmon heard that a tall man who drove an Intrepid was seen with Amilpas on July 2. This description reminded Aleman-Salmon of Zavala. Zavala drove an Intrepid and is 6 feet, 6 inches tall.
On July 4, 2003, Officer Polzine stopped a Ford Windstar in which Zavala was a passenger. Officer Polzine located a nine-millimeter Beretta underneath the passenger seat. The firearms examiner confirmed that the majority of the bullet parts submitted in this case matched the nine-millimeter Beretta recovered from under the passenger seat in the Windstar. Officer Polzine also recovered 178 pounds of marijuana and $2,350, including $355 on Zavala. As the van was being transported to the impound facility, a .40-caliber Beretta fell from underneath the dashboard. This .40-caliber Beretta also matched bullet parts submitted in this case. Additionally, Zavala=s former cell-mate testified that Zavala admitted he was caught with a Adirty@ gun that Ahad three murders.@ Zavala told his former cell-mate that the sister of one of the deceased saw him with her brother Abefore I did away with him.@ Finally, Zavala told his cell-mate Athat=s what happen[s] to people that [are] involved in this type of business . . . and don=t do the business the way they should do it.@
Zavala=s mother testified that her son was driving a van on July 2, 2003, and not his Intrepid. She also testified that she had never seen a firearm in his room or at his place of business. However, the jury, as the trier of fact, is the sole judge of the weight and credibility given to any witness=s testimony. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). Considering all of the evidence, a rational jury could have concluded beyond a reasonable doubt that Zavala murdered Eladio Trevino and Oliver Amilpas in the same criminal transaction. The evidence is legally sufficient.
Zavala argues that the jury should have been instructed on the law of parties. See Tex. Penal Code Ann. ' 7.01(a) (Vernon 1994) (stating that A[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.@); see also id. at ' 7.02(a)(2) (stating that a person is criminally responsible for an offense committed by the conduct of another if Aacting 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@). However, this argument fails to acknowledge that in evaluating the sufficiency of the evidence we consider a Ahypothetically correct charge.@ Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
A hypothetically correct charge Aaccurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State=s burden of proof or unnecessarily restrict the State=s theories of liability, and adequately describes the particular offense for which the defendant was tried.@ Id. In Gonzalez v. State, this court held that the Ahypothetically correct charge@ would include an instruction of the law of the parties, where such charge did not unnecessarily increase the State=s burden of proof, did not unnecessarily restrict the State=s theories of liability, and adequately described the offense. 63 S.W.3d 865, 873 (Tex. App.CHouston [14th Dist.] 2001), aff=d, 117 S.W.3d 831 (Tex. Crim. App. 2003). Because the evidence was legally sufficient under the hypothetically correct charge, we affirmed the conviction. Id. Here, if we follow Zavala=s argument that the jury should have been instructed on the law of parties, such instruction would already be included in the Ahypothetically correct charge@ considered on appeal. Zavala=s own concession in his brief that Ait is clear that the evidence is sufficient to prove the appellant guilty of capital murder if he was charged as a party or co-conspirator to the offense@ reaffirms our determination that the evidence is sufficient to support the verdict.
When hearing a factual-sufficiency challenge, we view all the evidence neutrally. See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We especially discuss and examine the specific evidence that the appellant contends undermines the jury=s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We may set aside the verdict if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or if the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We must not, however, intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). We may disagree with the jury=s conclusions; however, we must avoid substituting our judgment for that of the jury, particularly in matters of credibility. See Watson, 204 S.W.2d at 414.
Zavala contends that although the evidence was Aoverwhelming@ that he may have participated in Athis conspiracy,@ an alternative reasonable hypothesis is that Moises Borja or some other unknown person actually pulled the triggers. Although not determinative, the existence of an alternative reasonable hypothesis may be relevant to a factual-sufficiency review. Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999); Villani v. State, 116 S.W.3d 297, 304 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). Considering this alternative hypothesis, and conducting a neutral review of the evidence, we conclude that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust and the verdict is not against the great weight and preponderance of the evidence.
Having disposed of the appellant=s issues, we affirm the judgment of the trial court.
/s/ Jeff Brown
Justice
Judgment rendered and Memorandum Opinion filed July 22, 2008.
Panel consists of Justices Yates, Anderson, and Brown.
Do Not Publish C Tex. R. App. P. 47.2(b).