Navarro v. State

• Decision Date: 31 August 1989
• Docket Number: No. 13-88-392-CR,13-88-392-CR
• Citation: 776 S.W.2d 710
• Parties: Frank NAVARRO A/K/A Martin Javier Rodriguez, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 710

776 S.W.2d 710

Frank NAVARRO A/K/A Martin Javier Rodriguez, Appellant, v. The STATE of Texas, Appellee.

No. 13-88-392-CR.

Court of Appeals of Texas Corpus Christi.

Aug. 31, 1989.

Discretionary Review Refused Dec. 6, 1989.

Robert A. Rodriguez, Emmott & Arbuckle, P.C., Houston, for appellant.

John D. Holmes, Jr., Dist. Atty., Houston, for appellee.

Before UTTER, SEERDEN, and BENAVIDES, JJ.

OPINION

UTTER, Justice.

A jury found appellant guilty of murder and assessed punishment at 10 years in the Texas Department of Corrections. We reverse and remand the cause to the trial court for the entry of an acquittal.

In his first point of error, appellant contends that the evidence is insufficient to show that he was a party to the murder committed by his co-defendant Pablo Macias. ¹

We will summarize the facts of the case in the light most favorable to the verdict. In the early morning hours of December 25, 1987, appellant and Macias were at a Houston bar. When the bar closed around 4:00 a.m., they exited with other patrons. Outside the bar, Macias and the deceased, Miguel Morales, began arguing. Morales stated that he did not want to fight that night but would come back the following day. During this argument, appellant went to a nearby truck, acquired a gun, and returned to stand next to Macias. Appellant handed the gun to Macias who, shortly thereafter, shot Morales in the neck, causing his death.

The trial court did not instruct the jury on the law of parties as set out in Tex.Penal Code Ann. § 7.02(b) (Vernon 1974), which provides:

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.

The trial court charged the jury only under Tex.Penal Code Ann. § 7.02(a)(2) (Vernon 1974), 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....

The trial court authorized the jury to convict under the theories of murder contained in Tex.Penal Code Ann. section 19.02(a)(1) and (2) (Vernon 1989) in combination with section 7.02(a)(2). Thus, one paragraph of the charge allowed the jury to convict appellant if it found that "another person" intentionally or knowingly caused the victim's death and appellant "with the intent to promote or assist the commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid" the other person in committing the offense. A second paragraph allowed the jury to convict appellant if it found that "another person" intended to cause serious bodily injury to the victim and caused the death by intentionally or knowingly committing an act clearly dangerous to human life, and that appellant "with the intent to promote or assist the commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid" the other person in committing the offense.

In determining whether the evidence is sufficient to sustain a conviction, an appellate court reviews all the evidence in the light most favorable to the verdict to see if a rational trier of fact could find the elements of the offense beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989).

Evidence is sufficient to support a conviction under the law of parties where the actor is physically present at the commission of the offense and encourages the commission of the offense either by words or other agreement. Burdine v. State, 719 S.W.2d 309, 315 (Tex.Crim.App.1986); Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App.1985). The agreement, if any, must be before or contemporaneous with the criminal event. Beier v. State, 687 S.W.2d 2, 3 (Tex.Crim.App.1985).

The evidence must show that at the time of the offense the parties were acting together, each contributing some part towards the execution of their common purpose. Burdine, 719 S.W.2d at 315. In determining whether a defendant participated in an offense as a party, the court may examine the events occurring before, during, and after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to commit the offense. Burdine, 719 S.W.2d at 315.

In Ned v. State, 654 S.W.2d 732, 735 (Tex.App.--Houston [14th Dist.] 1983, no pet.) the Court held that each party becomes liable for the escalated collateral crimes, even though these crimes may be unplanned and unintended, so long as they are the foreseeable, ordinary and probable consequences of the preparation or execution of the unlawful act itself. After considering Mayfield v. State, 716 S.W.2d 509, 514-516 (Tex.Crim.App.1986), we find that the Court's language in Ned v. State, supra, is overbroad in describing vicarious criminal liability under section 7.02(a)(2) which specifically requires the actor to have the intent to promote or assist the commission of the offense.

We now elaborate on the facts set forth above and determine if the evidence is sufficient to sustain the conviction. Although as many as a dozen persons were present when the shooting occurred, the only ones of those to testify at trial were Julisa Morales, Manuel Reyes, Joe Espinal, Pablo Macias, and appellant. We will summarize each witness' testimony, specifically focusing on the evidence which relates to appellant's intent.

Julisa Morales, Miguel Morales' sister, testified that she arrived at the El Ambiente Club at 1:00 a.m. with her brother and girlfriend. She danced with her brother's friends, Manuel Reyes and Jose Espinal. At some point during the night, Morales began arguing with a guy who wanted to dance with her. This argument had nothing to do with appellant or his co-defendant Macias. Julisa testified that neither had asked her to dance and that she had seen neither at the club. She had not seen her brother quarrel with either of the defendants inside the club.

Around 4:00 a.m., when they left the club, Morales got into an argument with Macias. Julisa testified that "they were saying about Mexicans." Macias was "talking about Mexicans. He was talking about people from El Salvador." Macias said that "Mexicans were tough." In response, Morales laughed. Macias then "started saying that people from El Salvador were trash and, you know, he started criticizing them." During this time, appellant "was just standing there" beside Macias. Julisa and her brother were from Honduras.

After this, Morales said that he didn't want to fight because he didn't have anything on him like a weapon and that if they wanted to fight to come the next day to the nightclub. Macias then said that he didn't want to wait until the next day, that he could take them all that night. At this point, Morales' girlfriend, Rosalba, said it was time to go home, and Morales then pushed Rosalba into a wall. Rosalba started crying and went to the street. Julisa followed her. Julisa heard no sounds that would indicate a fist fight. Julisa then heard one shot. Julisa testified that none of the people she was with had guns or other weapons and that she did not see anybody go get Macias a weapon. Julisa further testified that she did not see appellant aid or assist Macias. She did not hear appellant even speak.

Manuel Reyes testified that when he first exited the club, Macias and Morales were arguing. Macias was generally insulting Morales and all Hondurans. Reyes said he was about five feet away and could see everything that both Macias and appellant were doing. Reyes testified that neither he, the victim, or Jose had any weapons on them or in their cars.

Reyes further testified the two argued for about five minutes, and then appellant went to a truck. Before then, appellant barely said anything. Reyes testified that he did not hear Macias ask for a gun or ask appellant to do anything before appellant left. Reyes saw appellant go to the truck and then come back. Appellant stood about two feet behind Macias. Appellant then pulled a gun from his waist and gave it to Macias. When Macias got the gun, Reyes testified that Morales "simply remained there standing ... I do not believe he thought he was going to be shot at." Macias held the gun down at his side for about 30 seconds and continued making insults. Upon seeing the gun, Jose ran to hide behind a van and Reyes went to the side of a car. Some people ran inside the club.

Reyes further stated that during the entire time, he had not heard Macias say anything to appellant. Appellant was just laughing at what Macias was saying.

Jose Espinal testified that he did not know Morales but had danced two songs with his sister. Espinal testified that when he exited the club, Macias and Morales were arguing. Macias was insulting El Salvadorans. Appellant was standing by Macias' side "not saying anything."

Espinal testified that appellant left and then came back. Espinal did not hear Macias ask appellant for the gun. Appellant held out the gun and Macias grabbed it.

Pablo Macias, the co-defendant, testified that Morales exchanged fighting words with Macias' friend, El Nica, in the club's bathroom. When Macias and his friends were dancing, Morales or his friends would "go by and hit us with their elbows." When Macias and his friends left the club, the deceased and his friends were waiting for them.

Macias further testified that Morales started picking a fight with El Nica. Morales wanted to fight and Macias tried to separate Morales from El Nica. Macias then agreed to meet Morales with a gun at 4:00 the next day. Two persons with Morales had handguns. El Nica...