Ramirez, Omar Felipe v. State

Affirmed and Memorandum Opinion filed July 21, 2005 Affirmed and Memorandum Opinion filed July 21, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00952-CR ____________ OMAR FELIPE RAMIREZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 934,225 M E M O R A N D U M   O P I N I O N Appellant was convicted by a jury of capital murder and sentenced to life imprisonment. On appeal, appellant raises ten points of error. In his first two points of error, appellant asserts that he was placed in double jeopardy and that the trial court erred by prohibiting him from eliciting favorable testimony from an arresting officer. In his remaining eight points of error, appellant challenges the legal and factual sufficiency of the evidence to support his conviction as a principal, a party, or a conspirator. We affirm. Factual and Procedural Background I. Factual Background This case involves the shooting death of Vien Ma, the complainant, during an aggravated robbery. On December 21, 2002, a Saturday morning, appellant and Roberto Fernandez entered the complainant=s grocery store. Both men came prepared; Fernandez had a gun and appellant carried mace.[1] The complainant and his wife were both working that morning. Video surveillance footage captured the events that followed. After the men entered the complainant=s store, appellant sprayed mace in the complainant=s wife=s face while Fernandez attacked the complainant. Fernandez repeatedly hit the complainant with his gun before shooting him once in the abdomen.[2] The complainant later died of this gunshot wound. After Fernandez shot the complainant, appellant jumped over the counter and went through the cash register area.[3] Appellant and Fernandez then fled from the store in a white van. The complainant=s wife ran out of the store, screaming for help. A woman who worked near the complainant=s store saw appellant and Fernandez leave the store and then flee in the white van; the woman called the Houston police, who eventually captured appellant and Fernandez after they abandoned their van and attempted to escape on foot. Fernandez was found with the complainant=s blood on his clothing; however, police were unable to recover the gun or the mace the men used. Police officers also found several thousand dollars of cash in appellant=s and Fernandez=s possession, as well as in the van.[4] Once arrested, appellant made numerous statements to the officers and later gave an audiotaped statement. In his initial statements to police, appellant incriminated himself in the robbery, but also expressed his anger with Fernandez.[5] Later, in his audiotaped statement, appellant claimed Fernandez had forced him to take part in the robbery. II. Procedural Background Although both appellant and Fernandez were charged with the capital murder of the complainant, they were tried separately. Fernandez was tried first. His jury impliedly acquitted him of capital murder by finding him guilty only of a lesser-included offense, felony murder. Relying on Fernandez=s implied acquittal of capital murder, appellant made an oral pre-trial motion asserting that double jeopardy and collateral estoppel principles barred the State from re-litigating whether appellant had the requisite intent to kill the complainant. He claimed this issue already had been resolved favorably to Fernandez so that the State could not relitigate it to obtain a different outcome in his trial. The trial court denied this motion. During the trial, appellant sought to elicit testimony that, in the arresting officer=s opinion, appellant was angry with Fernandez for shooting the complainant. Appellant argued that this lay opinion testimony would have shown that appellant did not intend for Fernandez to shoot and kill the complainant. The trial judge did not permit this line of questioning. The State never disputed that Fernandez, not appellant, shot the complainant. Consequently, the jury=s charge authorized appellant=s conviction either as a principal, a party, or a conspirator. Ultimately, the jury found appellant guilty of capital murder and assessed punishment at life imprisonment, to be served in the Texas Department of Criminal Justice, Institutional Division. Appellant brings ten points of error on appeal, challenging the denial of his double jeopardy motion, the exclusion of the officer=s testimony about his post-arrest statements, and the legal and factual sufficiency of the evidence to support his conviction. Analysis We initially address appellant=s legal and factual sufficiency challenges. I. Legal and Factual Sufficiency Challenges In eight issues, appellant challenges both the legal and factual sufficiency of the evidence to support his conviction. In his third and fourth issues, he contends the State failed to prove his guilt as the principal actor because there is no evidence or insufficient evidence that he shot and killed the complainant. In his next four issues, he contends the State failed to prove his guilt as a party because there is no evidence or insufficient evidence: 1) that he intended for his co-defendant to cause the complainant=s death; or 2) that he aided, assisted, or encouraged his co-defendant to cause the complainant=s death. In his ninth and tenth issues, he contends there is no evidence or insufficient evidence that he should have anticipated that the complainant would be shot and killed. A. Standards of Review We employ familiar standards of review to resolve appellant=s legal and factual sufficiency challenges. In a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict to determine whether any rational fact-finder could have found each element of the offense beyond a reasonable doubt. Clewis v. State, 922 S.W.2d 126, 132 (Tex. Crim. App. 1996) (en banc) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). As an appellate court, we cannot substitute our judgment for that of the jury and we defer to the jury=s determinations on the weight and credibility of the evidence. See Clewis, 922 S.W.2d at 135 (stating appellate courts Aare not free to reweigh the evidence and set aside a jury verdict merely because the judges feel that a different result is more reasonable@). In a factual sufficiency challenge, we view the evidence in a neutral light without the prism of the light-most-favorable-to-the-verdict. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). The evidence is factually insufficient when a jury could not rationally conclude appellant was guilty beyond a reasonable doubt. Id. This can occur in two ways. Id. at 484B85. First, the evidence is factually insufficient if the evidence that supports the verdict is too weak to support a finding beyond a reasonable doubt. Id. at 484. Second, when the evidence that supports the evidence is compared to the contrary evidence, the contrary evidence may be so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 485. Again, as an appellate court, we cannot substitute our opinion for that of the jury, and we must defer to the jury=s determinations on the weight and credibility of the evidence. See Clewis, 922 S.W.2d at 135. With the appropriate standards of review in mind, we now address appellant=s legal and factual sufficiency challenges. B. Under the law of parties, the State was not required to prove appellant shot and killed the complainant. First, we address appellant=s contention that the evidence is legally and factually insufficient to support his guilt because the State did not prove that he shot and killed the complainant. A person commits capital murder if the person intentionally and knowingly causes a person=s death in the course of committing or attempting to commit a robbery. Tex. Penal Code ' 19.03(a)(2) (providing the offense of capital murder is committed when a person commits murder, as defined in section 19.02(b)(1), in the course of or while attempting to commit robbery); id. ' 19.02(b)(1) (providing the offense of murder is committed when a person intentionally or knowingly causes the death of an individual). In making this contention, appellant ignores the fact that his jury was appropriately instructed on the law of parties; in such a case, proof that appellant actually caused the fatality is not necessary. See Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim. App. 1988) (en banc); Hammond v. State, 942 S.W.2d 703, 706 (Tex. App.CHouston [14th Dist.] 1997, no pet.) (AProof beyond a reasonable doubt that appellant actually fired the fatal shot is not necessary for a capital murder conviction where the jury is charged on the law of the parties.@) (citing Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992)). Because appellant=s jury was properly instructed on the law of parties and because, as we discuss below, the jury rationally could have found him guilty beyond a reasonable doubt under the law of parties, we overrule appellant=s third and fourth issues. See Hammond, 942 S.W.2d at 706 (AThe principle is well-established that when 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.@) (citing Rabbani, 847 S.W.2d at 558). C. The evidence is legally and factually sufficient to prove appellant committed capital murder as a party or a conspirator. In appellant=s remaining six challenges to the sufficiency of the evidence, he contends the State failed to prove his guilt as a party or conspirator.[6] A person is criminally responsible for an offense if the offense is committed by his own conduct, the conduct of another for which he is criminally responsible, or both. Tex. Penal Code ' 7.01(a). Under the law of parties, set forth in section 7.02(a)(2), appellant is criminally responsible for Fernandez=s conduct if appellant intended to promote or assist Fernandez=s murder of the complainant, and appellant solicited, encouraged, directed, aided, or attempted to aid Fernandez in committing the murder. See id. ' 7.02(a)(2). Appellant can also be criminally responsible as a conspirator for Fernandez=s conduct under section 7.02(b). This section provides that, if the murder was committed in the attempt to carry out a conspiracy to commit the robbery, then all conspirators are guilty of the murder, even if they did not intend to commit murder, as long as the murder was committed in furtherance of the robbery and should have been anticipated as a result of carrying out the conspiracy to commit the robbery. See id. ' 7.02(b). Therefore, the jury could have convicted appellant either as a party under section 7.02(a)(2), or as a conspirator under section 7.02(b). 1. Texas Penal Code ' 7.02(a)(2) - Acting as a Party. In his fifth and sixth issues, appellant contends the State failed to introduce legally or factually sufficient evidence to prove that he intended for Fernandez to cause the complainant=s death by shooting him. In his seventh and eighth issues, appellant contends the State failed to introduce legally or factually sufficient evidence to prove that he aided, assisted, or encouraged Fernandez in causing the complainant=s death. These complaints presuppose that the jury found appellant guilty as a party under section 7.02(a)(2). See Tex. Penal Code ' 7.02(a)(2) (providing a person is criminally responsible for another person=s conduct if the person has the mental state required for the principal to be guilty of the offense and the person solicits, encourages, directs, aids, or attempts to aid the principal to commit the offense). Appellant contends the evidence shows only that he was participating in the robbery by distracting the complainant=s wife while Fernandez shot the complainant. According to appellant, there is nothing in the record to suggest he desired to see the complainant killed. Similarly, appellant contends the record does not show that he aided, assisted, or encouraged Fernandez to shoot the complainant. To support appellant=s guilt under the law of parties, the evidence needed to show that, at the time of the offense, appellant and Fernandez were acting together, each contributing some part towards the execution of their common purpose. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). In determining the scope of appellant=s participation in the complainant=s murder, and whether appellant intended for Fernandez to murder the complainant, the jury was not limited to considering which of the two men actually fired the fatal shot. Instead, the jury properly could consider the events occurring before, during, and after the commission of the offense, and could rely on appellant=s actions and other circumstantial evidence that demonstrated an understanding and common scheme to commit the murder. See Salinas v. State, 163 S.W.3d 734, 739B40 (Tex. Crim. App. 2005) (citing Ransom, 920 S.W.2d at 302); Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (stating jury could infer intent from circumstantial evidence); Hammond, 942 S.W.2d at 703; Moore v. State, 804 S.W.2d 165, 166 (Tex. App.CHouston [14th Dist.] 1991, no pet.) (A[T]he jury may look to events occurring before, during and after the offense and reliance may be placed on actions which show an understanding and common design to engage in an act.@). The following evidence was introduced at trial. Appellant entered the complainant=s store with Fernandez. When the men entered the complainant=s store, Fernandez carried a gun and appellant had mace; both men arrived prepared to overcome resistance by force. Appellant sprayed what appeared to be mace in the complainant=s wife=s face while Fernandez severely beat, and eventually shot, the complainant with his gun. After Fernandez shot the complainant, appellant took money from the cash register area, and both men left the store together. When police tried to stop their vehicle, both men continued their flight on foot. When viewed in the light most favorable to the verdict, we conclude this evidence is legally sufficient for the jury to rationally conclude beyond a reasonable doubt that appellant intended for Fernandez to murder the complainant and that he aided, assisted, or encouraged Fernandez to do so. See Jackson, 443 U.S. at 319; Sanders, 119 S.W.3d at 820; Clewis, 922 S.W.2d at 132. Even when we view this evidence in a neutral light, we cannot say that it is too weak to satisfy the beyond-a-reasonable-doubt standard, nor is the contrary evidence so strong that this standard could not have been met. See Zuniga, 144 S.W.3d at 484B85. Therefore, we overrule appellant=s fifth, sixth, seventh, and eighth issues. 2. Texas Penal Code ' 7.02(b) - Acting as a Conspirator. In appellant=s remaining two sufficiency issues, he asserts the State failed to prove his guilt because there is no evidence or factually insufficient evidence that he should have anticipated that Fernandez would shoot and kill the complainant. This complaint presupposes that the jury found appellant guilty as a conspirator under section 7.02(b) of the Texas Penal Code. See Tex. Penal Code ' 7.02(b) (providing that if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed, then the conspirator is guilty of the felony actually committed if it was committed in furtherance of the unlawful purpose and was one that should have been anticipated, even if the conspirator had no intent to commit it); see also Longoria v. State, 154 S.W.3d 747, 754 (Tex. App.CHouston [14th Dist.] 2004, pet. filed) (stating it is well-settled under Texas law that a person can be found guilty of capital murder as a conspiring party under section 7.02(b)). Appellant concedes that the record suggests that he, along with Fernandez and possibly others, planned the underlying robbery. But appellant contends the record is silent about what risks and dangers he should have anticipated. We disagree. The record reflects that Fernandez was armed with a loaded gun when appellant entered the store with him. The fact that the men entered the store armed with a gun supports the jury=s finding that appellant should have anticipated the complainant=s death. See Longoria, 154 S.W.3d at 757; see also Tippitt v. State, 41 S.W.3d 316, 324B25 (Tex. App.CFort Worth 2001, no pet.) (listing cases holding that a defendant should anticipate a resulting murder when the defendant knows that a gun would be used during the robbery). The record also reflects that the complainant=s murder was in furtherance of the robbery. The complainant and his wife struggled with Fernandez and the appellant when the two men began their attempt to rob the store. But it was not until after Fernandez shot the complainant that appellant took the money from the cash register. When viewed in the light most favorable to the verdict, this evidence is legally sufficient for the jury to rationally have concluded, beyond a reasonable doubt, that appellant should have anticipated the complainant=s murder and that the complainant was murdered to allow appellant and Fernandez to carry out the robbery and to further the conspiracy to commit robbery. See Jackson, 443 U.S. at 319; Sanders, 119 S.W.3d at 820; Clewis, 922 S.W.2d at 132. Even when viewed in a neutral light, this evidence is not so weak, nor is the contrary evidence so strong, that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484B85. Therefore, we hold that the evidence is legally and factually sufficient to support appellant=s conviction for capital murder. II. Double Jeopardy Appellant claims that he should not have been tried for capital murder because Fernandez, his co-defendant and the principal actor, was impliedly acquitted in a separate trial of capital murder by virtue of being convicted of felony murder, a lesser offense. Appellant asserts that Fernandez=s acquittal of capital murder collaterally estops the State from proving the intent element of capital murder in his case. Whether collateral estoppel should apply is a question of law for the court to decide. James v. City of Houston, 138 S.W.3d 433, 437 (Tex. App.CHouston [14th Dist.] 2004, no pet.). The doctrine of collateral estoppel is embodied within the constitutional bar against double jeopardy. Ex parte Watkins, 73 S.W.3d 264, 267 (Tex. Crim. App. 2002). But the two concepts are different in that double jeopardy bars any retrial of a criminal offense, while collateral estoppel only bars retrial of specific and discrete facts that have been fully and fairly adjudicated. Id. Under the doctrine of collateral estoppel, Awhen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.@ Id. at 268 (quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970) (emphasis added). Appellant insists that he could be convicted only as a party, and therefore the finding that Fernandez did not have the intent to kill required for a capital murder conviction should apply to his capital murder trial as well. The State argues that appellant was not a party to Fernandez=s trial, and therefore collateral estoppel does not apply. Collateral estoppel forbids re-litigation of an issue between the same parties that litigated the issue in a prior lawsuit. E.g., Ashe, 397 U.S. at 443; Watkins, 73 S.W.3d at 267; Ex parte Infante, 151 S.W.3d 255, 259 (Tex. App.CTexarkana 2004, no pet.). Whether collateral estoppel should apply in this case, then, depends on whether the two cases involved the same parties. See Moreno v. State, 1 S.W.3d 846, 858 (Tex. App.CCorpus Christi 1999, pet. ref=d). The parties in the first case were the State of Texas and Roberto Fernandez. The parties in this case are the State of Texas and appellant. Because the parties in the two trials are different, appellant cannot claim collateral estoppel as to any issue resolved at Fernandez=s trial.[7] We overrule this issue. III. Officer Carroll=s Testimony In his last remaining issue, appellant claims the trial court committed reversible error when it prohibited appellant from asking Officer Carroll whether he thought appellant was upset because he did not intend for Fernandez to shoot the complainant. Appellant claims that, under Texas Rule of Evidence 701, he should have been allowed to elicit a lay opinion from Officer Carroll concerning why appellant was upset.[8] To be admissible under Rule 701, opinion testimony must have two attributes. Tex. R. Evid. 701; Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997) (en banc). First, the opinion must be rationally based on personal knowledge. Farrow, 943 S.W.2d at 898. An opinion will satisfy the personal knowledge requirement if it is an interpretation of the witness=s objective perception of events. Id. at 899. To be rationally based, the opinion must be one that a reasonable person could draw under the circumstances. Id. at 900. Second, the testimony must be helpful to the trier of fact, either helping the fact-finder to understand the witness=s testimony or determine a fact at issue. Id. Important factors in determining if the second element has been met include whether the court finds the testimony overly confusing or complicated, and the degree to which the witness is able to convey the events from which his opinion is drawn. Id. For example, if a witness can articulate his perceptions in great detail, then the jury would be able to make up its own mind and an opinion would not be helpful. Id. Appellant contends that the lay opinion he sought from Officer Carroll would have met both of these criteria. He claims that the testimony was a rational inference based on the officer=s personal observation of the incident, and that it would have helped the jury in determining whether appellant had the intent required for capital murder. Whether an opinion meets the requirements of Rule 701 is within the sound discretion of the trial court, and the trial court=s decision regarding admissibility should be overturned only if the court abuses that discretion. Id. at 901. If there is evidence in the record that supports the trial court=s decision to admit or exclude an opinion under Rule 701, then there is no abuse and we must defer to that decision. Id. We review the trial court=s ruling in light of the evidence before the trial court when the ruling was made. Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005) (en banc). The evidence in the record supports the trial court=s decision. When the trial court decided to exclude the testimony, Officer Overby, another officer, already had told the jury what appellant said immediately after his arrest. The jury was just as capable of interpreting those statements as Officer Carroll, rendering the utility of any opinion of Officer Carroll as to their meaning of slight or no usefulness. See, e.g., Roberts v. State, 743 S.W.2d 708, 711 (Tex. App.CHouston [14th Dist.] 1987, pet. ref=d) (holding that an officer=s lay opinion was unnecessary and inadmissible when the jury had the information before it and was able to draw its own inferences). This evidence supports the trial court=s ruling and, therefore, the trial court did not abuse its discretion. We overrule appellant=s final issue. Conclusion Having addressed and overruled each of appellant=s issues, we affirm the trial court=s judgment. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed July 21, 2005. Panel consists of Chief Justice Hedges and Justices Fowler and Frost. Do Not Publish C Tex. R. App. P. 47.2(b). [1] A witness at trial testified that the video showed appellant spraying something from what appeared to be an aerosol can at the complainant=s wife=s face. The complainant=s son testified that his mother=s eyes had a burned appearance. Appellant=s attorney referred to the substance as mace spray during his closing argument. Although the record does not definitively identify the substance appellant used as mace, for simplicity, we refer to it as mace. [2] Before firing the fatal shot, Fernandez beat the complainant so severely that he suffered twenty-five facial wounds, skull fractures, and brain swelling, in addition to many defensive wounds on his arms and body. During this time, appellant struggled with the complainant=s wife, eventually spraying mace in her face. [3] Appellant=s fingerprints were later discovered on the counter. [4] The majority of the money was found in the van and in Fernandez=s possession; appellant had roughly $350.00 in cash when arrested. The complainant=s son testified that the complainant typically kept large amounts of cash at his store on Fridays and Saturdays in order to cash his customers= paychecks. [5] Appellant cursed the arresting officers before saying that he would rob them the next time. Appellant also asked the officers, ADid they find the gun? How would you feel if your partner did you like that? He should have stayed quiet.@ [6] The court=s charge permitted the jury to convict appellant if it found he was guilty as a principal, as a party, or as a conspirator. The charge follows section 7.02 of the Texas Penal Code, which provides: (a) A person is criminally responsible for an offense committed by the conduct of another if . . . : (2) 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; or . . . (b) 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. Tex. Penal Code ' 7.02(a)(2), (b). [7] In addition, section 7.03 of the Texas Penal Code specifically forbids a defendant whose criminal responsibility is based on the conduct of another from raising as a defense the fact that the person for whose conduct the actor is criminally responsible: 1) has been acquitted; 2) has not been prosecuted or convicted; 3) has been convicted of a different offense or a different type or class of offense; or 4) is immune from prosecution. Tex. Penal Code ' 7.03. Appellant raises the constitutionality of this provision in his brief. However, the issue was not raised below and, therefore, is not properly before this court. See Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995); see also Tex. R. App. P. 33.1(a); Dean v. State, 60 S.W.3d 217, 225B26 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). [8] Rule 701 of the Texas Rules of Evidence states: If the witness is not testifying as an expert, the witness= testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness= testimony or the determination of a fact in issue. Tex. R. Evid. 701.