Medina v. State

• Decision Date: 06 October 1999
• Citation: 7 S.W.3d 633
• Parties: (Tex.Crim.App. 1999) ANTHONY SHAWN MEDINA, Appellant v. THE STATE OF TEXAS, Appellee NO. 72594
• Court: Texas Court of Criminal Appeals

Page 633

7 S.W.3d 633 (Tex.Crim.App. 1999)

ANTHONY SHAWN MEDINA, Appellant v. THE STATE OF TEXAS, Appellee

NO. 72594.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

Oct. 6, 1999.

Concurring Opinion of Judge Womack June 2, 1999.

ON DIRECT APPEAL FROM HARRIS COUNTY

[Copyrighted Material Omitted]

Before the court en banc.

O P I N I O N

KELLER, J. delivered the opinion of the Court in which McCORMICK, P.J. and MANSFIELD, PRICE, HOLLAND, JOHNSON, and KEASLER, JJ., joined.

The Court's prior opinion is withdrawn.

Appellant was convicted in August 1996 of a capital murder committed on January 1, 1996. TEX. PENAL CODE 19.03. The verdicts required the trial court to sentence appellant to death. TEX. CODE CRIM. PROC. art. 37.071 2. Appeal from the sentence of death is direct and automatic to this Court. Id; TEX. CONST. Art. I, 5. Appellant raises twenty-two points of error. We will affirm.

I. SUFFICIENCY OF THE EVIDENCE

A. Legal Sufficiency

In points of error one and two, appellant challenges the legal sufficiency of the evidence to establish an intent to kill. Citing Morrow v. State, 753 S.W.2d 372 (Tex. Crim. App. 1988), appellant argues the evidence is insufficient because it fails to establish that he specifically intended that death result from his conduct.

Reviewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307 (1979), Nelson v. State, 848 S.W.2d 126, 131 (Tex. Crim. App. 1992), the evidence in appellant's case establishes that shortly after midnight on January 1, 1996, appellant drove past the Rodriguez residence and opened fire into a crowd of children and teenagers standing in the well-lit front yard of the home. The young people, mostly family, were attending a New Year's Eve celebration. Appellant sprayed gunfire across the front yard and into the group of people at about five to seven feet from the ground and from only a few feet away from some of the victims. Appellant's gunfire struck several cars, the home, and three people. Rocio Pedrosa was shot in the abdomen. She survived. The capital murder victims - David Rodriguez, 8, and his sister Diane Rodriguez, 13 - were nearest to appellant's gunfire. David sustained two fatal wounds; one pierced his head while the other pierced his arm and traveled into his chest. Diane sustained a non-fatal wound which pierced her right breast and a fatal wound which pierced her left shoulder and traveled into her neck. The murder weapon was a Russian SKS assault rifle with eight and one quarter pounds trigger pull. Johnny Valadez, who was in the car with appellant, testified that appellant affirmed that he had shot "her" because "he saw fat meat fly off."¹

The theory of capital murder under which appellant was indicted and convicted, TEX. PENAL CODE 19.03(a)(7)(A) includes within its ambit both intentional and knowing murders. 19.03(a)(7)(A) provides in relevant part that a person commits an offense if he "murders more than one person...during the same criminal transaction" (ellipsis inserted). Section 19.03(a) defines capital murder with reference to Section 19.02(b) which states, in pertinent part, that a person commits an offense if he:

(1) intentionally or knowingly causes the death of an individual;

(emphasis added).² Section 6.03(b), TEX. PENAL CODE, in pertinent part, states, "A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result." Thus, the evidence is sufficient in this case if it supports the rational conclusion that appellant committed the murders intentionally or knowingly. The facts of this case, while supporting both an intentional and knowing theory of murder, more accurately present two murders committed knowingly. We hold that the evidence is sufficient to support a rational conclusion that appellant committed the murders knowingly, that is, that appellant was aware that his conduct was reasonably certain to result in death.

Nevertheless, the evidence is also sufficient to show that the murders were committed intentionally. In response to the argument that the evidence is insufficient to establish an intent to kill, the State argues that Vuong v. State, 830 S.W.2d 929, 933 (Tex. Crim. App. 1992), is directly on point against appellant. We agree with the State; Vuong is controlling.

Vuong was convicted of capital murder after he entered a crowded restaurant and opened fire at the patrons. Vuong argued the evidence was insufficient to establish that he acted with the specific intent to kill because the evidence showed that he had acted irrationally and without thinking. As appellant does today, Vuong argued that firing a gun into a crowd of people could not be capital murder because the act lacks a specific intent to kill. We rejected Vuong's arguments, holding that

Appellant's use of a deadly weapon in a tavern filled with patrons supplies ample evidence for a rational jury to conclude beyond a reasonable doubt that Appellant had the requisite intent to kill: "The specific intent to kill may be inferred from the use of a deadly weapon, unless in the manner of its use it is reasonably apparent that death or serious bodily injury could not result." Godsey v. State, 719 S.W.2d 578, 580-81 (Tex. Crim. App. 1986). Clearly, the use of an automatic weapon under these circumstances was a "manner of use" in which death or serious bodily harm was a likely result. In addition, there are a number of other factors that could have led a jury to reasonably believe Appellant's conduct was knowing or intentional, including: (1) the testimony of witnesses concerning appellant's calculated demeanor, (2) evidence showing that seven of the approximately eleven shots fired during the criminal episode struck human targets, and (3) the fact that the victim Tien was shot twice directlyin the face and the victim Hien was killed by a bullet that hit him squarely in the chin. Finally, we note that it is not required that the State show a motive in order to sustain a conviction of capital murder. Garcia v. State, 495 S.W.2d 257, 259 (Tex. Crim. App. 1973).

Vuong, 830 S.W.2d at 934 (emphasis added).

As in Vuong, the circumstances surrounding the present offense support a rational finding that appellant acted with the specific intent to kill. Clearly, the use of an automatic weapon under these circumstances was a "manner of use" in which death or serious bodily harm was a likely result. Opening fire with an automatic rifle, at close range, on a group of people supports the conclusion that appellant acted with the specific intent to kill. Points of error one and two are overruled.

B. Factual Sufficiency

In points of error three and four, appellant challenges the factual sufficiency of the evidence to establish an intent to kill. Clewis v. State, 922 S.W.2d 126, 131-132 (Tex. Crim App. 1996). Factual sufficiency reviews take into consideration all of the evidence related to the challenge, and weigh the evidence which tends to prove the existence of the fact in dispute against the contradictory evidence. Clewis, 922 S.W.2d at 129, 134. But, to avoid intruding upon the jury's role as arbiter of the weight and credibility of the evidence, a factual sufficiency review remains deferential to the jury's verdict. Clewis, 922 S.W.2d at 133. That a different verdict would be more reasonable is, therefore, insufficient to justify reversal; the jury's verdict will be upheld, unless it is so "against the great weight of the evidence " that it is "clearly wrong and unjust," i.e., manifestly unjust, shocking to the conscience or clearly biased. Id. at 135.

Appellant argues that the evidence is factually insufficient because the great weight and preponderance of the evidence establishes that he intended only to shoot at the house and not at any individual. Our holding in appellant's first point of error defeats this assertion. See points one and two, supra. To the contrary, we find no evidence that appellant intended only to shoot at the house. Appellant knew the home to be occupied. The victims were standing in plain sight, in front of the house. Most of the bullets were shot at human height. And, appellant employed an especially deadly weapon, which he fired at close range. The jury's verdict was not against the great weight of the evidence, clearly wrong and unjust, or biased. Points of error three and four are overruled.

II. GUILT PHASE

A. Jury instructions

1. Transferred Intent

In points of error five and six, appellant claims that the trial court erred in instructing the jury on transferred intent. Acknowledging that he made no objection at trial, he argues, under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)(op. on reh'g), that the error was egregious. But if appellant is correct that a finding of guilt upon a transferred intent theory would be irrational under the evidence, then it would appear highly unlikely that a correctly framed transferred intent instruction would result in a jury verdict on that theory.³ Under similar circumstances involving the law of parties, we have held that the defendant failed to show egregious harm. Cathey v. State, 992 S.W.2d 460, 466 (Tex.Crim.App. 1999)(no egregious harm from correctly framed parties instruction if evidence fails to support submission of law of parties). The reasoning in Cathey is equally applicable to the present case. Points of error five and six are overruled.

2. Lesser Included Offenses

In points of error seven through nine, appellant contends that the trial court erred in denying his requested instructions on the lesser included offenses of felony murder, murder and involuntary manslaughter. Appellant argues that he was entitled to the lesser offense instructions because there is evidence in the record that if he killed the victims, he did so only without the intent to kill.⁴ The State counters that there is no such evidence in the record.

Under Rousseau v. State,...