Pablo Velez, Jr. v. State

Opinion issued June 14, 2007 In The Court of Appeals For The First District of Texas NO. 01-06-00368-CR PABLO VELEZ, JR., Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 176th District Court Harris County, Texas Trial Court Cause No. 997162 MEMORANDUM OPINION A jury convicted appellant, Pablo Velez, Jr., of murder and assessed punishment at 30 years' confinement. In points of error one, two, and six, appellant contends the evidence is legally insufficient. In points of error three, four, and seven, appellant contends the evidence is factually insufficient. In point of error five, appellant contends the trial court erred by including a charge on the law of parties. In point of error eight, appellant contends the trial court erred by excluding relevant evidence. We affirm. BACKGROUND On Wednesday, July 14, 2004, and into the early hours of Thursday, July 15, 2004, Claudia Beltran and her friend, Nancy Almanza, were at the Perfect Rack pool hall. Adrian Payan, who is the father of Beltran's child, came by the pool hall several times during the evening looking for several men who had beaten him up earlier in the week. At closing time, Beltran called Payan to come back to the pool hall because Jason Wooley wanted to fight him. Payan was accompanied by his friends, Esteban Rodriguez, and the complainant, Emerson Bojorquez. Payan and Rodriguez got out of the car and approached the front of the pool hall where Beltran, Almanza, and Wooley were standing. Payan thought that Bojorquez had remained in the car. As Payan and Rodriguez walked toward the pool hall, Beltran pointed toward Wooley, who was wearing a red shirt. Wooley then pulled out a gun and fired a shot. As Payan and Rodriguez turned to run, they heard other shots being fired from other guns in the parking lot. Beltran, who was standing near Wooley when he fired his gun, also saw a man in a blue shirt with a long gun standing near a gold Cadillac in the parking lot. After the shots began, Wooley and the man in the blue shirt chased after Payan and Rodriguez for a while before returning to the parking lot and leaving in the gold Cadillac. Beltran and her friend, Almanza, got in Beltran's car and followed the gold Cadillac. Almanza memorized the first part of the gold Cadillac's license plate numbers, and Beltran memorized the last part of the license plate numbers. Beltran then wrote the number down on her Bible using her eyeliner. Beltran and Almanza then returned to the Perfect Rack, where they found Payan, who had been shot in the back. They also discovered Bojorquez lying dead on the sidewalk near the spot where Beltran had seen the man in the blue shirt emerge from between the cars in the parking lot. The police later identified the gold Cadillac as belonging to appellant, and Beltran identified appellant from a photo array as the man she had seen wearing the blue shirt. Police officers found three clusters of shell casings at the scene, which led them to believe that multiple shooters had participated in an "ambush." SUFFICIENCY OF THE EVIDENCE In points of error one, two, and six, appellant contends the evidence is legally insufficient to support his conviction, either as a principal or as a party. In points of error three, four, and seven, appellant contends the evidence is factually insufficient to support his conviction, either as a principal or as a party. Specifically, appellant contends there is no evidence that he was present at the scene of the shooting. Standards of Review In reviewing a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the verdict. Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King, 29 S.W.3d at 562. The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5. The Law A person commits murder if he intentionally or knowingly causes the death of an individual or 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. Tex. Pen. Code Ann. § 19.02(b)(1) & (2) ( (Vernon 2003). The indictment alleged that appellant (1) intentionally and knowingly caused the death of Emerson Bojorquez by shooting him with a deadly weapon, namely a firearm; or (2) intended to cause serious bodily injury to Emerson Bojorquez and did cause the death of Bojorquez by intentionally committing an act clearly dangerous to human life, namely by shooting Bojorquez with a deadly weapon, a firearm. The jury charge included an instruction on the law of parties. A person is criminally responsible as a party to an offense is the offense is committed by the conduct of another for which he is criminally responsible. Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). 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. Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). To determine whether a defendant participated as a party in the commission of an offense, the fact finder may look to events that occurred before, during, or after the offense, and may place reliance on acts showing an understanding and common design. Ranson v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996). An agreement of the parties to act together in a common design seldom can be proven by direct evidence; reliance may therefore be placed upon the actions of the parties, showing either by direct or circumstantial evidence an understanding and common design to do a certain act. Burdine v. State, 719 S.W.2d 309, 315 (Tex. Crim. App. 1986). Legal Sufficiency The evidence shows that Claudia Beltran saw a man she later identified as appellant holding a gun in the parking lot. Appellant was standing near the area where Bojorquez was later found dead. After hearing gunfire from several locations, Beltran saw appellant and Wooley chasing Payan and Rodriguez through the parking lot. She then saw appellant and Wooley return, get into the gold Cadillac, and leave. Beltran and Almanza followed the gold Cadillac and wrote down its license plate number. The police determined that appellant owned the gold Cadillac. The police also showed Beltran a photo array, from which she positively identified appellant as the shooter she had seen wearing the blue shirt. The police also determined that there were likely multiple shooters involved in the "ambush-type" shooting. Based on these facts, a rational trier of fact could have found appellant guilty of the offense, either as a principal actor, or by aiding and abetting Wooley. Accordingly, we overrule points of error one, two, and six. Factual Sufficiency Appellant argues that the evidence is factually insufficient because of the following reasons: 1. Although Beltran positively identified appellant as the man she had seen in the blue shirt, she was unable to identify him at trial. 2. Appellant testified that he was working as a truck driver and did not arrive in Houston until after midnight on July 15, 2004, and when he got home he spent the night with his ex-girlfriend, Anel Pina. 3. Appellant explained the presence of the gold Cadillac at the scene by saying that he had given the car to Ron Strandberg, who took over the payments on it. He also introduced evidence that Strandberg had taken the car to have a radio installed on July 8. He also testified that Strandberg told him to come pick up the car a few weeks after the shooting, which he did, returning it to the dealership. A friend who accompanied him to the dealership thought that it was probably on a Sunday afternoon. The State, however, presented evidence that Beltran positively identified appellant in a photo array shortly after the shooting. She took no more than 4 seconds to point him out to police officers. A police officer also testified that it took him only 28 minutes to drive from the trucking company, where appellant arrived at midnight, to the pool hall. The shooting did not occur until the bar closed around 2 a.m. From this the jury could have concluded that appellant had time to park his truck, get his gold Cadillac, and go to the bar for closing time. Appellant denied going to the bar that night, but stated that he spent the night with his ex-girlfriend Anel Pina. Pina, however, testified that appellant did not stay at her house that night, because her work records showed that she worked on the 15th, and he had not stayed over on a night when she had to work the next day. She remembered that he did not come over until July 29. Appellant called Pina and tried to convince her that he had been with her on the night of the 14th and he wanted her to tell that to the police. She, however, refused, because she knew it was not true. Appellant seemed angry when Pina would not agree with him about the date. Regarding the gold Cadillac, the State introduced evidence that appellant told them he returned the car to the dealership the day after the shooting, not several weeks later as he claimed at trial. The jury, as fact finder, was entitled to believe the State's version of the evidence and disbelieve appellant's version. After reviewing all of the evidence in a neutral light, we cannot say that the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) that the verdict is against the great weight and preponderance of the evidence. Accordingly, we overrule points of error three, four, and seven.CHARGE ON THE LAW OF PARTIES In point of error five, appellant contends the trial court erred in including an instruction on the law of parties in the charge because it was not raised by the evidence. Even where a proper objection is made at trial, the Court of Criminal Appeals has held that when, as in the instant case, the evidence supports a defendant's guilt as the primary actor, error, if any, in charging on the law of parties is harmless. See Cathey v. State, 992 S.W.2d 460, 466 (Tex. Crim. App. 1999). We previously set out the evidence that established appellant's guilt as a primary actor. He was seen in the parking lot with a gun near the area where Bojorquez was found shot. Shots were fired from multiple guns, and appellant was one of two men seen in the parking lot with a gun. He knew Wooley, and both he and Wooley chased after Payan. Appellant and Wooley then fled in a car registered to appellant. Beltran identified appellant as the man in the blue shirt holding a long gun. Even if we assume the trial court erred in submitting the parties charge, appellant has failed to show harm. See Cathey, 992 S.W.2d at 466. Accordingly, we overrule point of error five. EXCLUSION OF EVIDENCE In point of error eight, appellant contends the trial court erred by excluding evidence that the shell casings recovered at the scene of the murder matched the shell casings recovered at another location. To preserve error in the exclusion of evidence, a party must make a sufficient offer of proof and obtain a ruling. Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.1(a)(1)(A); Hernandez v. State, 127 S.W.3d 206, 216 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd). Error may not be predicated upon a ruling that excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which questions were asked. Tex.R. Evid. 103(a)(2); Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998); Hernandez, 127 S.W .3d at 216; Garza v. State, 846 S.W.2d 936, 939 (Tex. App.--Houston [1st Dist] 1993, pet. ref'd). An offer of proof must show that the excluded evidence is relevant and admissible and must show the facts that a defendant wishes to prove. Edwards v. State, 178 S.W.3d 139, 146 (Tex. App.--Houston [1st Dist] 2005, no pet.); Railsback v. State, 95 S.W.3d 473, 478 (Tex. App.--Houston [1st Dist] 2002, pet. ref'd). An offer of proof must be specific enough to enable the reviewing court to determine the admissibility of the disputed evidence; only a short, factual recitation of what the testimony would show is required. In re N.R.C., 94 S.W.3d 799, 806 (Tex. App.--Houston [14th Dist] 2002, pet denied). On appeal, appellant argues that the excluded evidence would have shown that Ron Strandberg was involved in another shooting using the same.40 caliber gun that was involved in the present shooting, and that appellant was not present or investigated in connection with the other shooting. However, appellant's trial counsel did not make an offer of proof or present a bill of exception to the trial court to reveal this anticipated substance of the excluded testimony. See Tex.R. Evid. 103(a)(2); Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999). Appellant did not make the substance of King's or Downs's testimony known to the court by offer of proof, and the substance of that testimony was not apparent from the context. See Guidry, 9 S.W.3d at 153; Warner, 969 S.W.2d at 2; Hernandez, 127 S.W.3d at 216; Garza, 846 S.W.2d at 939. Because no offer of proof was made, and the record does not indicate what the excluded testimony would have been, appellant has waived any error, and nothing is presented for review. See Tex.R. Evid. 103(a)(2); Guidry, 9 S.W.3d at 153. We overrule appellant's eighth point of error. CONCLUSION We affirm the judgment. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Keyes and Higley. Do not publish. Tex. R. App. P. 47.2(b).