Affirmed as Modified; Opinion Filed July 21, 2017.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00895-CR
EDUARDO RAYO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F15-75460-I
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Evans
Opinion by Justice Evans
Eduardo Rayo was convicted of capital murder and sentenced to life imprisonment
without the possibility of parole. Appellant raises two issues on appeal alleging that the jury
charge contained error by authorizing the jury to convict appellant of the offense of conspiracy
and failing to properly apply the law of parties to the facts. We modify the trial court’s judgment
to reflect appellant was convicted of capital murder by committing or attempting to commit
robbery. As modified, we affirm the trial court’s judgment.
BACKGROUND
On April 11, 2015, Heather Molina was at home with her second husband and five
children.1 Denise Jasso and her four youngest children also lived in the apartment. Heather was
1
The children lived with their father during the week and went to their mother’s house every weekend.
in the bedroom with her husband. Heather’s son, Anthony, and her daughter, April were in the
living room. Heather’s daughter, Monica, and two of Denise’s children, Angel and Maria, were
outside in the back on the patio. At about 10:00 p.m., there was a knock on the door. A few
moments after Heather answered the door, she was shot by one of the men. She died as a result
of a gunshot wound to the head. She also had a blunt force injury to her forehead from being
struck by some object, like the muzzle of a firearm.
All five children testified about what they saw and heard that night when the men came to
the apartment. Anthony testified that when his mother opened the door, he saw two men wearing
hoodies. They both walked inside. One man had a revolver. One of the men told him to go to
the couch and pointed a gun at his head. He heard one man say, “get the money, get the money.”
He heard a huge bang and saw a flash. After the men left, he saw his mother was covered in
blood.
Monica testified that while she was on the patio, she saw two Hispanic men approach the
apartment, one with a jacket and one with a hat. One of the men asked for Weda, her mother’s
nickname. When Monica walked inside, her mother was already at the front door. She saw one
of the men hitting her mother in the face, and her mother punching back. She then saw a flash
and heard a gun. After seeing the flash, Monica ran outside to neighbor’s house and asked for
help.
April testified that when her mother opened the front door, she saw two men, both
wearing all black with work shoes and hoodies. The men were talking to each other, saying “you
grab the money.” Both men were holding guns. The first one through the door hit her mother
with the gun. April told her mother to put her hands up and then she heard a gunshot. One of the
men stayed by the door, pointing his gun into the apartment while the other man went through
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the apartment to the patio, pointing his gun at her and Anthony, and telling them to get down.
About a minute later, both men ran off together through the front door.
Angel testified that he saw two men approach the apartment and knock on the door.
They said they were looking for Weda and that Polo had sent them. He saw the men slam open
the door and both men enter the apartment. He heard them say to Heather, “Give me the money”
and heard Heather say, “Please don’t hurt me; just take it; please don’t hurt me.” Angel saw one
of the men holding the gun towards Heather’s head and shoot her. The other man was standing
about two feet behind the man who shot her. Angel then saw the man move towards Heather and
lean down towards her body. The shooter then ran out of the apartment towards the patio,
pointed the gun at Angel and his sister, and then ran back into the apartment. Both of the men
ran out of the front door of the apartment together. Angel gave the police a description of what
one of the men was wearing, a blue sweatshirt and blue jeans. The other man’s clothing looked
similar. Angel identified appellant in court as the shooter. He recognized him because of the
tattoo and was 100% certain that appellant was the man who shot Heather. Angel testified that
about a month before the shooting, he was looking out his window and saw Heather talking to
appellant in a car.
Maria testified that she saw two Mexican men knock on the door to the apartment. They
were looking for Weda and said Polo had sent them. Earlier that day, Heather told Maria to let
her know if anyone arrived saying Polo had sent them. After Heather answered the door, and the
men told her that Polo had sent them, she heard screaming and a commotion. Maria then heard
one men say, “give me the fucking money; give me the fucking money.” She also heard Heather
screaming, “just take it; just take it; please don’t hurt me.” Two seconds after that, she heard the
gunshot. After the gun went off, Monica came running out of the apartment, jumped the patio
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fence, and took off running. She saw the man in the white shirt run out. The man in the dark
shirt came out to the patio and pointed a gun at her and her brother and then ran out.
Abby Vanatta was a drug addict and bought heroin from Heather. She testified that
Heather worked for Polo and would give Polo some of the money she got from selling the drugs.
On the day Heather was killed, she and Polo were having a dispute about money Polo thought
Heather owed him.
Officer Shutka and his partner responded to the shots fired call at the apartments. While
they were setting up a crime scene perimeter, a man flagged them down and gave them a
description of the vehicle the suspects left in. The police also had appellant’s name and address
from a 911 caller. After a deployment team saw the suspect vehicle near the scene, Officer
Shutka and his partner stopped it. Appellant was the driver, and his wife was the passenger.
A gunshot residue test was performed on appellant while he was in the back of the patrol
car after being taken into custody. The results were consistent with appellant having recently
fired a firearm, as well as being near a firearm that was fired.
Detective Tabor conducted a lengthy interview with appellant which was admitted into
evidence and played for the jury. During the interview, appellant admitted that he went to
Heather’s apartment with another man that night. Appellant’s wife was also with them and
drove them out of the apartment complex. Appellant also admitted that he and the other man
went to the door and said Polo sent them. He described the events leading to the shooting, the
same way the children described them. Appellant said that the other man pulled a gun out of his
pocket and when Heather came to the door, he went in and shot her. Appellant said he thought
they were just going there to get drugs and money and denied knowing that a shooting would
occur. Appellant admitted that they got the dope and that he got a portion of what was taken
from the house.
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ANALYSIS
Jury Charge
In his first issue, appellant argues that the theory of conspiracy in the court’s charge
constituted error because the offense of conspiracy had not been alleged in the indictment and
was not a lesser included offense of capital murder. The State argues that the court’s charge did
not instruct the jury to consider whether appellant was guilty of criminal conspiracy but instead
properly instructed the jury on conspiracy as a party under penal code section 7.02(b).
A person may be convicted 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. TEX.
PENAL CODE ANN. § 7.01(a) (West 2011). Under section 7.02(a), a person is criminally
responsible as a party 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). Section 7.02(b) provides another theory of party liability as a co-conspirator:
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.
Id. § 7.02(b). The law of parties, as stated in section 7.02 may be applied to a case even though
no such allegation is contained in the indictment. Montoya v. State, 810 S.W.2d 160, 165 (Tex.
Crim. App. 1989). In addition, the theory of criminal responsibility set forth in section 7.02(b) is
applicable in capital murder cases. Id.
Here, the abstract portion of the court’s charge included instructions on the law of parties
from both subsections (a) and (b) of section 7.02. It also defined “conspiracy” in accordance
with the definition of “criminal conspiracy” in Texas Penal Code § 15.02(a) as follows:
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“Conspiracy” is committed if, with intent that a felony be
committed, a person agrees with one or more persons that they or
one or more of them engage in conduct that would constitute the
offense and he or one or more of them performs an overt act in
pursuance of the agreement.
The application portion of the court’s charge authorized appellant’s conviction for capital murder
as the perpetrator of Heather’s death, as a party to the offense under the law of parties set forth in
section 7.02(a), or as a party to the offense under the law of parties set forth in section 7.02(b).
Specifically, regarding the third theory, the charge instructed the jury:
If you believe from the evidence beyond a reasonable doubt that
the defendant, Eduardo Rayo, entered into a conspiracy with an
unknown person to commit the felony offense of robbery and that
on or about the 11th day of April, 2015 in Dallas County, Texas, in
the attempt to carry out this agreement, if any, the unknown person
did then and there intentionally cause the death of an individual,
Heather Molina, by shooting the said Heather Molina with a
deadly weapon, to-wit: a firearm, if he did, and that such offense
was committed in furtherance of the unlawful purpose of the
conspiracy to commit robbery, and was an offense that should have
been anticipated as the result of the carrying out of the agreement,
then you will find the defendant, Eduardo Rayo, guilty of the
offense of Capital Murder, though he may have had no intent to
commit it, and so say by your verdict.
The court of criminal appeals has addressed the same argument that appellant makes
here. In Montoya, the court of criminal appeals rejected the appellant’s argument that including
the theory of conspiracy in the court’s charge erroneously allowed the jury to consider whether
the appellant was guilty of the separate offense of criminal conspiracy under section 15.02 of the
penal code. Montoya, 810 S.W.2d at 165. The court held the charge, which defined the term
“conspiracy,” “merely contained an alternative ‘parties’ charge as provided in [penal code
section] 7.02(b).” Id.; Murkledove v. State, 437 S.W.3d 17, 22–23 (Tex. App.—Ft. Worth 2014,
pet. dism’d, untimely filed). Likewise, in this case, the charge properly allowed the jury to find
appellant guilty of capital murder under the law of parties. We overrule appellant’s first issue.
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In appellant’s second issue, he contends that the jury charge on capital murder failed to
properly apply the facts to the law of parties under section 7.02(a)(2). If the evidence supports,
and the charge authorizes the jury to find that appellant himself shot Heather, there is no need to
rely on the theory of parties to support the conviction. See Pitts v. State, 569 S.W.2d 898, 900
(Tex. Crim. App. 1978); Reyes v. State, 422 S.W.3d 18, 28 (Tex. App.—Waco 2013, pet. ref’d).
Further, if the evidence supports, and the charge authorizes the jury to find that the appellant was
guilty under section 7.02(b), there is no need to rely on the theory of parties under section
7.02(a)(2) to support the conviction. Wallace v. State, 618 S.W.2d 67, 69 (Tex. Crim. App.
1981); Hardmon v. State, No. 05-95-01841-CR, 1997 WL 331006 at *9 (Tex. App.—Dallas June
18, 1997, no pet.) (not designated for publication). In this case, the evidence supported
appellant’s conviction both as a principal and as a party under section 7.02(b). 2 Thus, we need
not address appellant’s contention that his conviction should be reversed because the trial court
failed to apply the law to the facts under section 7.02(a)(2). We overrule appellant’s second
issue.
Modification of Judgment
The trial court’s judgment reflects that appellant was convicted of “capital murder by
terror threat/other felony.” However, the record reflects that appellant was convicted of capital
murder by committing or attempting to commit robbery. Accordingly, we modify the section of
the judgment titled “Offense for which Defendant Convicted” to state “capital murder by
committing or attempting to commit robbery.” See TEX. R. APP. P. 43.2(b); Bigley v. State, 865
2
During the charge conference, appellant’s counsel argued that he was entitled to have the theory under which
[appellant] would be a party under 7.02(a)(2) specifically set out in the application paragraph. When the trial court
asked what facts [he wanted applied], appellant’s counsel responded that he did not believe there were any facts,
“Because if he’s guilty as a party, he’s guilty only under the law of conspiracy.” In addition, appellant
acknowledges that, based on the evidence, he could have been found guilty “either individually or as a party to the
offense.”
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S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—
Dallas 1991, pet. ref’d.).
CONCLUSION
We modify the trial court’s judgment to reflect that appellant was convicted of capital
murder by committing or attempting to commit robbery. As modified, we affirm the trial court’s
judgment.
/David W. Evans/
DAVID EVANS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
160895F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EDUARDO RAYO, Appellant On Appeal from the Criminal District Court
No. 2, Dallas County, Texas
No. 05-16-00895-CR V. Trial Court Cause No. F15-75460-I.
Opinion delivered by Justice Evans, Justices
THE STATE OF TEXAS, Appellee Bridges and Lang-Miers participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to reflect Eduardo Rayo was convicted of capital murder by committing or attempting to commit
robbery. As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 21st day of July, 2017.
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