Tyrone Lavon Thomas AKA Tyrone Lavon Copeland v. State

Affirmed and Memorandum Opinion filed December 6, 2005 Affirmed and Memorandum Opinion filed December 6, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00472-CR ____________ TYRONE LAVON THOMAS A.K.A. TYRONE LAVON COPELAND, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 212th District Court Galveston County, Texas Trial Court Cause No. 02CR0673 M E M O R A N D U M   O P I N I O N Appellant, Tyrone Lavon Thomas, was convicted of murder. The jury found an enhancement paragraph true and sentenced appellant to fifty years= imprisonment and a fine of $10,000. In three issues, appellant claims that the evidence is legally and factually insufficient to support his conviction and that the jury charge was improper. We affirm. Factual and Procedural Background On February 25, 2002, police responded to a call reporting a suspicious vehicle. The responding officer discovered the body of Albert Barnes lying in the back seat with his pockets turned inside out. Barnes had several lacerations on his head, but the cause of death was a close-range gunshot wound to the back of his head. The investigation that followed led to several suspects, among them Julio Raveiro and Delena Kent, who were interviewed by police. Kent first lied to police but then implicated Raveiro, appellant, and Charles Aaron Williams, who were arrested. After his arrest, appellant initially refused to talk to police but then made a voluntary statement. In his statement, appellant admitted he, Raveiro, and Williams made plans to rob Barnes, a drug dealer. Raveiro drove appellant and Williams from Wichita Falls, Texas to Dickinson, Texas, where Raveiro and Barnes lived, and took them to a hotel room. Shortly thereafter, Raverio lured Barnes to his home under pretense of buying crack cocaine. Appellant and Williams were hiding outside Raveiro=s home when Barnes arrived. Both appellant and Raveiro had guns, although appellant claims his was unloaded. As Barnes talked to Raviero outside the house, appellant and Williams ambushed him. Appellant admits he held a gun to Barnes and kicked him while Raveiro and Williams hit and kicked Barnes and emptied his pockets. Appellant told police Barnes offered his assailants more narcotics from his home, which they decided to retrieve. Appellant, Kent, and Williams got inside Barnes=s car, with appellant in the front passenger seat and Barnes in the back seat with Williams. Kent drove Barnes=s car behind Raveiro, who led in his own car. At this point, appellant claims the events deviated from the plan he admittedly had made with Williams and Raveiro to rob Barnes. Raveiro motioned for Kent to stop near some woods, and then he got out and approached Barnes=s car. Appellant said he protested the stop because he wanted to continue to Barnes=s home to get the narcotics. Raveiro told appellant to get in Raviero=s car, and as appellant did so, he heard a single gunshot. Appellant claims he did not intend Barnes=s death but admits that after the robbery and murder he, Williams, and Raveiro divided Barnes=s cash and drugs. Kent provided a somewhat different account to police and at trial. According to Kent, she heard the men discuss robbing Barnes in Wichita Falls and later saw Raveiro obtain two pistols and some bullets. She witnessed appellant and Williams beat Barnes and drag him, unconscious, to the back seat of his car. Kent testified that Raveiro forced her to drive Barnes=s car and that as she drove, appellant sat in the passenger seat beside her and pointed his gun at her. Meanwhile, Williams sat in the back and continued to hit Barnes with the other gun. Kent testified Barnes awoke and appellant and Williams told him Athey [were] going to kill him and they wanted all his money.@ After the shooting, she saw appellant, Williams, and Raveiro divide Barnes=s cash and drugs at Raveiro=s home. At trial, Kent testified that Raveiro threatened to kill her brother if she told anyone about the crime and made her help clean the blood at his home. Kent also testified she lied about the murder at first to police because she feared for her brother, but she told the truth after they agreed to protect him. Sufficiency of the Evidence In his first and second issues, appellant argues the evidence is legally and factually insufficient to support his conviction. In conducting a legal-sufficiency review claim attacking a jury=s finding of guilt, 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). We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318B19 (1979). Rather, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). In our review, we accord great deference A>to the responsibility of the trier of fact [fairly to] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.=@ Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (quoting Jackson, 443 U.S. at 319). We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution. Id. at 133 n.13. In conducting a factual-sufficiency review of the jury=s determination, we do not view the evidence Ain the light most favorable to the prosecution.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Instead, we view the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). We may find the verdict factually insufficient in two ways. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. We must discuss the evidence appellant claims is the most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). However, we must employ appropriate deference so that we do not substitute our judgment for that of the fact-finder. Zuniga, 144 S.W.3d at 482. 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. Cain, 958 S.W.2d at 407. The State may prove the offense of murder by proving a defendant (1) intentionally or knowingly caused the death of an individual or (2) intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the death of an individual. See Tex. Penal Code Ann. _ 19.02(b)(1)B(2) (Vernon 2003). The State may also establish the offense of murder by proving a defendant intentionally entered a conspiracy to perform an unlawful act, if a death was caused by any of the conspirators in furtherance of the unlawful purpose and should have been anticipated as a result of carrying out the conspiracy. See id. _ 7.02(b); Naranjo v. State, 745 S.W.2d 430, 432, 434 (Tex. App.CHouston [14th Dist.] 1988, no pet.) (upholding murder conviction where co-conspirators shot and killed victim during aggravated robbery). Here, the jury charge authorized a murder conviction based on any of these three theories of guilt, and the jury returned a general verdict of guilt. It is well established that where the jury returns a general verdict, and the evidence is sufficient to support a guilty finding under any of the allegations submitted, the verdict will be upheld. See Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992); Hammond v. State, 942 S.W.2d 703, 706 (Tex. App.CHouston [14th Dist.] 1997, no pet.). Appellant argues the evidence on these three alternative theories is legally insufficient. Specifically, he argues that because he did not personally shoot Barnes and because there is no evidence that Barnes was killed as part of a conspiracy, the conviction cannot be sustained. However, the jury charge also authorized the jury to convict on the law of parties. Under the law of parties, a person is criminally responsible for an offense committed by 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. Penal Code Ann. _ 7.01(a). Thus, if the jury found appellant was a party to the offense, whether he pulled the trigger is irrelevant. See Gutierrez v. State, 681 S.W.2d 698, 702B03 (Tex. App.CHouston [14th Dist.] 1984, pet. ref=d). The evidence in this case clearly supports a conclusion that appellant intentionally aided Williams and Raveiro in committing the offense. Delena Kent witnessed appellant, Williams, and Raveiro plan, prepare, and execute the robbery. She said appellant used a gun provided by Raviero to beat Barnes and to force her to drive Barnes=s car. Appellant=s own statement establishes that he helped Williams overpower, rob, and transport Barnes to where he was killed. Although appellant claims he protested when the cars pulled over and when Barnes was shot, he produced no corroborative evidence of his claim. Rather, the facts that he split Barnes=s belongings and failed to call police after the murder suggest otherwise. Appellant also contends Kent=s testimony was unreliable because it is self-serving and she admittedly smoked crack the night of the murder. However, the jury is the sole judge of the credibility of the witnesses and the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). A reasonable juror could have believed Kent=s testimony, much of which coincided with appellant=s own account, and disbelieved appellant=s statement that he did not intend Barnes=s death. Viewing the evidence in a light most favorable to the verdict, we conclude the jury rationally could have found beyond a reasonable doubt that appellant was criminally responsible as a party for aiding Williams and Raveiro with intent to promote or assist the commission of murder. Viewing the same evidence in a neutral light, we conclude the evidence is not too weak to support guilt beyond a reasonable doubt, and the contrary evidence was not strong enough to conclude that the reasonable doubt standard could not be met. Thus, under the law of parties, the evidence is legally and factually sufficient to support the verdict on the first two theories. Thus, we need not consider the legal and factual sufficiency of the third theory of murder, conspiracy. See Rabbani, 847 S.W.2d at 558; Hammond, 942 S.W.2d at 706. Appellant=s first and second issues are overruled. The Jury Charge In his third issue, appellant contends that the jury charge regarding conspiracy was erroneous. We first determine whether error exists in the charge. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). If error is found, we next determine whether the error was so harmful as to require reversal of the conviction. Id. The degree of harm required for reversal depends on whether the error was preserved. Id. Here, appellant admittedly did not preserve error, so he must show egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); see also Ngo v. State, No. PD-0504-04, __ S.W.3d __, 2005 WL 600353, at *3B4, *8 (Tex. Crim. App. Mar. 16, 2005) (finding egregious harm where jury charge allowed non-unanimous verdict and prosecutor argued same); Hutch v. State, 922 S.W.2d 166, 174 (Tex. Crim. App. 1996) (finding egregious harm where jury charge stated opposite of the law). The application portion of the jury charge requires the jury to decide if A[appellant] and or [Williams] and or [Raveiro]@ intentionally entered a conspiracy to rob Barnes. Appellant argues this language permitted conviction even if he did not enter the conspiracy. We agree that using both the conjunctive and disjunctive after appellant=s name is potentially confusing. Accordingly, we find error exists in the charge. Having found error, we now consider whether appellant suffered egregious harm. Arline, 721 S.W.2d at 351. In analyzing harm, the appellate court may consider (1) the charge itself, (2) the state of the evidence, including contested issues and the weight of the probative evidence, (3) arguments of counsel, and (4) any other relevant information revealed by the trial record as a whole. Hutch, 922 S.W.2d at 171; Taylor v. State, 7 S.W.3d 732, 736 (Tex. App.CHouston [14th Dist.] 1999, no pet.). Here, the same paragraph that contains the error also specifies that appellant must have anticipated Barnes=s murder Aas a result of the carrying out of the conspiracy.@ The jury charge correctly defines Aconspiracy@ and gives a comprehensive explanation for when conspirators are responsible for acts of co-conspirators. Read together, the jury charge requires appellant to enter a conspiracy to be responsible for the criminal acts of co-conspirators. Further, even if the application paragraph on conspiracy was confusing, the jury alternatively could have convicted appellant as a party. See Loredo v. State, 130 S.W.3d 275, 283 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d) (AThe harmfulness of error in the jury charge should be measured, at least in part, against the likelihood that the jury=s verdict was based on an available alternative theory of culpability that was not affected by the erroneous portion of the charge.@). Moreover, the erroneous part of the charge concerns whether appellant intentionally entered the conspiracy to rob Barnes. Thus, because appellant conceded at trial and on appeal that he planned to rob Barnes with Williams and Raveiro, the charge error does not relate to a contested issue. See Hutch, 922 S.W.2d at 172 (pointing out that Awhether the error related to a >contested issue=@ is relevant to egregious harm analysis). Finally, the State correctly explained conspiracy law during its closing argument and specifically referred to the erroneous paragraph. Considering all the circumstances, we find the error did not cause appellant egregious harm. We overrule appellant=s third and final issue. The judgment of the trial court is affirmed. /s/ Leslie Brock Yates Justice Judgment rendered and Memorandum Opinion filed December 6, 2005. Panel consists of Chief Justice Hedges, Justices Yates and Anderson. (Anderson, J. concurring in result only.) Do Not Publish C Tex. R. App. P. 47.2(b).