Marcus Rene Loya v. State

NUMBER 13-04-00537-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI B EDINBURG MARCUS RENE LOYA, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 377th District Court of Victoria County, Texas. MEMORANDUM OPINION Before Justices Hinojosa, Rodriguez, and Garza Memorandum Opinion by Justice Hinojosa A jury found appellant, Marcus Rene Loya, guilty of one count of murder[1] and one count of engaging in organized criminal activity[2] and assessed his punishment at life imprisonment and a $10,000 fine. In four issues, appellant contends (1) the State violated his right to due process (2) and the evidence is legally insufficient to support his convictions. We affirm. A. Background On November 24, 2003, six-year-old Robert Conchola, Jr. was shot in the face while sleeping on a pallet in the living room of his parents= trailer home. The child was pronounced dead at the hospital. His father, Robert Conchola, was an alleged member of the street gang, La Raza Unida. On that night, a rival street gang, the Hermanos de Pistoleros Latinos (AHPL@), stood opposite of Conchola=s trailer and shot indiscriminately into the trailer. Appellant was a member of the HPL. B. Due Process In his first, second, and third issues, appellant contends his right to due process was violated because the State did not disclose to the jury that it had agreements with certain witnesses and that some of the witnesses were parties to the offense for which appellant was on trial. Appellant, however, has failed to present us with a clear or concise argument in support of this contention and has failed to present appropriate references to authorities as required by rule 38.1(h) of the rules of appellate procedure. See Tex. R. App. P. 38.1(h). Because appellant's first, second, and third issues are inadequately briefed, we overrule them. C. Sufficiency of the Evidence In his fourth issue, appellant contends the evidence is legally insufficient to support his convictions for murder and engaging in organized criminal activity. When we review the legal sufficiency of the evidence, we look at all the evidence in the light most favorable to the verdict to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Patrick v. State, 906 S.W.2d 481, 486 (Tex. Crim. App. 1995); Turro v. State, 867 S.W.2d 43, 46-47 (Tex. Crim. App. 1993). Sufficiency of the evidence is measured by the hypothetically correct jury charge, which accurately sets out the law, is authorized by the indictment, and does not unnecessarily increase the State's burden of proof. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Cano v. State, 3 S.W.3d 99, 105 (Tex. App.BCorpus Christi 1999, pet. ref'd). The jury, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, is free to accept or reject all or any part of the testimony of any witness. Tex. Code Crim. Proc. art. 38.04 (Vernon 1979); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). A person commits the offense of engaging in organized criminal activity if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit one or more of various acts including murder. Tex. Pen. Code Ann. ' 71.02(a)(1) (Vernon Supp. 2005). A person commits the offense of murder 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 of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, the person commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. Id. ' 19.02(b). The first count of the indictment alleged that appellant, as a member of a street gang, conspired with other members to commit the offense of murder by shooting a firearm at or in the direction of a habitation and by shooting at its inhabitants. The second count of the indictment alleged that appellant intentionally and knowingly caused the death of Robert Conchola, Jr. by shooting him in the face with a firearm. Appellant argues that because two of the State=s primary witnesses, Paul Benavides and Delissa Perez Garcia, had a history of participating in illegal activities and were alleged accomplices to the offense, their testimony was unbelievable. A conviction based in part on accomplice witness testimony may be upheld if it is corroborated by non-accomplice evidence. Tex. Code Crim. Proc. art. 38.14 (Vernon 1979). The test to determine whether an accomplice witness's testimony is corroborated is to eliminate the accomplice testimony from consideration and determine whether there is any other incriminating evidence which tends to connect appellant with the commission of the offense. McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (en banc); see Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979) (providing that corroboration is insufficient if it merely shows commission of the offense). The non-accomplice testimony need not directly link the accused to the crime or be sufficient in itself to establish guilt. Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988). Rather, the non‑accomplice evidence merely has to tend to connect appellant to the offense. Hernandez v. State, 52 S.W.3d 268, 279 (Tex. App.BCorpus Christi 2001, no pet.). The State offered several pieces of physical evidence to support its contention that appellant was a member of the HPL. The evidence included a document produced by the Texas Department of Criminal Justice that said appellant was a confirmed member of the HPL, multiple photographs of appellant posing with other members of the HPL, and a telephone book found in the possession of an HPL member which contained appellant=s telephone number. In addition, several non-accomplice witnesses used photographs provided by the State to identify appellant as a member of the HPL. The State also presented testimony from non-accomplice witnesses showing how appellant and the HPL were involved in the shooting and murder of the child victim. Jennifer Munoz testified that on the day of the shooting she had expected appellant to join her at her home; however, appellant called her and told her that he had some business to take care of that evening. Munoz found out that Robert Conchola, Jr. had been shot that night because the child was her nephew. She went to the hospital but left when it became apparent that the child would not make it. Munoz did not hear from appellant again until she returned from the hospital. Appellant called Munoz and attempted to converse normally with her, but Munoz=s suspicions were piqued, and she asked him whether he had been involved in the shooting. At that point, Munoz said appellant became quiet and hung up the phone. Joe Ochoa lived with his mother across the street from the Concholas. He testified that on the night of the offense he was in bed when he heard a series of gunshots. Alarmed, he scrambled out of bed, went into the living room, and looked out a window. He saw a group of people standing in a staggered formation across the street from the Conchola trailer. Ochoa saw the people fire into the trailer. Joe Ochoa=s mother, Mary Lou Torres, testified that on the night in question the sound of gunshots woke her up. Vladimir Parungo, M.D., performed an autopsy on the body of Robert Conchola, Jr. According to the autopsy report, a .38 caliber bullet was found underneath the child=s scalp. Officer Tommy Copeland investigated the crime scene and gathered numerous shell casings at the scene. Officer Copeland showed the trajectory of many of the bullets from the holes they made in the trailer, including the trajectory of the bullet that killed Robert Conchola, Jr. Other officers testified they found firearms in the possession of various HPL members that fired the bullets found at the scene. We consider the non-accomplice evidence more than sufficient to connect appellant to the charged offenses and to corroborate the testimony of the accomplice witnesses. In addition, the jury charge cautioned the jurors against placing their entire decision on the weight of the testimony of either of the two accomplice witnesses, Paul Benavides and Delissa Perez Garcia. Benavides testified that sometime in the fall of 2003, the HPL decided to kill Robert Conchola. They made two attempts. The first attempt to kill Robert Conchola was on the evening of November 23. On that day, HPL members, including appellant, gathered at the home of an HPL member to finalize plans before going to Conchola=s neighborhood. Benavides testified that all HPL members, including appellant, possessed firearms. The HPL=s plan to shoot at Conchola=s trailer floundered that night because the repeated appearance of police cruisers aroused the fears of the gang=s leaders. A second attempt to kill Robert Conchola was made on the evening of November 24. Again, HPL members gathered at a member=s home to finalize plans. Benavides said appellant was present and armed and went with the group to Conchola=s neighborhood. Benavides, however, was not part of the group that went to the Conchola home. Garcia testified that appellant was at her home all day on November 24. Appellant left Garcia=s home late in the afternoon with two fellow members of the HPL. Garcia did not hear from appellant again until after midnight the next day. She said that he called her in a state of exhaustion. According to Garcia, appellant told her to Abe watching the news@ and that she would Asee what they had done to the trailer.@ The jury decides the credibility of the witnesses. Sharp, 707 S.W.2d at 614; Bowden, 628 S.W.2d at 784. Looking at all of the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that appellant engaged in organized criminal activity as a member of HPL and knowingly and intentionally participated in the murder of Robert Conchola, Jr. Accordingly, we conclude the evidence is legally sufficient to support his conviction. Appellant=s fourth issue is overruled. The judgment of the trial court is affirmed. FEDERICO G. HINOJOSA Justice Do not publish. See Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 6th day of July, 2006. [1] Tex. Pen. Code Ann. '19.02 (Vernon 2003). [2] Tex. Pen. Code Ann. ' 71.02 (Vernon Supp. 2005).