Palomo v. State

• Decision Date: 13 June 1996
• Docket Number: No. 13-94-497-CR,13-94-497-CR
• Citation: 925 S.W.2d 329
• Parties: Rene PALOMO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 329

925 S.W.2d 329

Rene PALOMO, Appellant, v. The STATE of Texas, Appellee.

No. 13-94-497-CR.

Court of Appeals of Texas Corpus Christi.

June 13, 1996.

Adolfo "Al" Alvarez, Keith C. Livesay, McAllen, for appellant.

Rene Guerra, District & County Attorney, Theodore C. Hake, Asst. Criminal District Attorney, Traci A. Sellman, Asst. Criminal District Attorney, Edinburg, for appellee.

Before YANEZ, CHAVEZ and RODRIGUEZ, JJ.

OPINION

YNEZ, Justice.

Appellant, Rene Palomo, appeals his convictions for murder and attempted murder. After finding appellant guilty of both counts, a jury assessed punishment at twenty-five years confinement and a $5,000.00 fine for the murder conviction and fifteen years confinement for the attempted murder conviction. By eight points of error, appellant challenges his convictions. Appellant contends that the evidence is insufficient and that the trial court erred in its evidentiary rulings. We reverse and remand.

On the day of the crimes, appellant borrowed the family car in Hidalgo, Texas, and drove to his school's basketball court with a friend. When the two discovered that the gym was closed, they continued to drive. Thereafter, they picked up four additional passengers. Appellant was driving. One of the passengers entered the car with a gun. There was also evidence that appellant was a member of the Po' Boyz gang.

After all five passengers were in the car, appellant drove to Pharr, Texas. Appellant stopped the car near a residence where Mark Flores and Raul Soliz Jr. were standing. Flores and Soliz were either members of, or merely friendly with, a rival gang, the Tri-City Bombers. Appellant recognized Mark Flores. In his statement to the police, appellant recounted that Flores had told him "chinga tu madre;" there was other evidence that appellant and Flores had previous verbal altercations. Soon after stopping, appellant began to argue with Flores. Appellant initially began to drive away, but stopped the car and backed up. One of the car's occupants, Ramon Carrillo, leaned out of the car and began to shoot in the direction of Flores and Soliz. After firing three shots, Carrillo got back in the car. In the driver's seat, appellant sped away. Appellant dropped off all but one of the car's five passengers, and went to visit female friends who also knew Flores. The shooting incident left Raul Soliz dead.

By points of error one through three, appellant complains that the evidence is insufficient to uphold his convictions. In determining the merits of an insufficiency claim, we review the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 157 (Tex.Crim.App.1991); Prophet v. State, 815 S.W.2d 836, 837 (Tex.App.--Corpus Christi 1991, pet. ref'd). We also apply this standard to cases involving circumstantial evidence. Earhart v. State, 823 S.W.2d 607, 616 (Tex.Crim.App.1991); Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Crim.App.1983) (opinion on reh'g). We measure the sufficiency of the evidence against the indictment as incorporated into the jury charge. Jones v. State, 815 S.W.2d 667, 670-71 (Tex.Crim.App.1991).

In this case, the jury was asked if appellant intentionally or knowingly caused the death of Raul Soliz and attempted to cause the death of Mark Flores. The jury charge explained that a person commits murder if he intentionally or knowingly causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(a) (Vernon 1989). The jury was also instructed that the essential elements of attempted murder are: 1) a person, 2) with the specific intent to cause the death of another, 3) does an act amounting to more than mere preparation, 4) but fails to effect the death of the other individual. TEX. PENAL CODE ANN. § 15.01(a) (Vernon Supp.1994); TEX. PENAL CODE ANN. § 19.02(a)(1) (Vernon 1989); Fuller v. State, 716 S.W.2d 721, 723 (Tex.App.--Corpus Christi 1986, pet. ref'd). A specific intent to kill is a necessary element of attempted murder. Flanagan v. State, 675 S.W.2d 734, 741 (Tex.Crim.App.1984).

Furthermore, the jury was instructed that

[a] person is criminally responsible for an offense committed by the conduct of another if:

(2) acting with the 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. § 7.02(a) (Vernon 1974). Additionally, the charge indicated that "mere presence alone will not constitute one a party to an offense."

By points one and two, appellant contends that there is insufficient evidence to show that he intentionally and knowingly caused the death of Raul Soliz, or that he had the specific intent to murder Mark Flores. Appellant argues that he did not know there was a gun in the car, that he did not know that Ramon Carrillo was going to shoot, that he was merely present at the scene of the offense and never touched the gun. Appellant argues that there is no evidence to show that he intended to assist Ramon Carrillo in the shootings.

When reviewing the sufficiency of the evidence, an appellate court must examine all the evidence, including any that was erroneously admitted. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex.Crim.App.1990). The jury heard evidence that the appellant did not get along with Flores, and that he had exchanged words with him in the days preceding the murder. The jury also heard testimony regarding a possible gang rivalry between appellant and the persons in his car, and Flores and his friends, including Soliz. There was testimony that someone driving appellant's car had attempted to run over the same individuals the day before the murder. Finally, the jury heard testimony that on the day of the crime, appellant had picked up several of his friends, one of whom brought a gun, and that they eventually drove to Mark Flores' house, in front of which Flores and the victim were standing. Flores testified that appellant shouted out gang slogans and obscenities at him and Soliz. Flores also stated that appellant then began to drive away, but suddenly stopped and backed up, at which point one of his passengers got out and fired three shots from a .22 caliber weapon at him and Soliz. Appellant then drove away.

Given the totality of the evidence presented, we hold that there was sufficient evidence, under the law of parties, to find that appellant had the specific intent to assist in the attempt to shoot Flores, and that appellant intended to assist in the murder of Soliz. With regard to the attempted murder of Flores, the evidence demonstrated an ongoing personal conflict between appellant and Flores, and the identification of appellant's car in a prior attempted hit and run involving the victims. Points one and two are overruled.

By point number four, appellant maintains that the trial court erred by not allowing him to call co-defendant Ramon Carrillo as a witness. Related to this point of error is appellant's fifth point of error, that the trial court erred in denying the accused a right to perfect a proper bill of exception on point number four. The record reflects that the trial court did allow appellant to make a bill of exception on this point, and that appellant's counsel chose to offer a concise statement of what he believed the testimony would show, as allowed by Texas Rule of Appellate Procedure 52(b). In his informal bill of exception, appellant's attorney stated,

If Mr. Carrillo had testified, he would testify essentially ... that my client did not do the shooting, did not assist in the shooting, did not know of the shooting, in no way was a party to the shooting of the victim in this particular case.... If Roman Carrillo were present, he would completely, positively, exculpate Rene Palomo of any criminal doing in the shooting....

We hold that this statement was sufficient to apprise the court of the content of the excluded testimony, and did preserve error. Love v. State, 861 S.W.2d 899, 901 (Tex.Crim.App.1993); See Cavazos v. State, 904 S.W.2d 744, 748 (Tex.App.--Corpus Christi 1995, pet. ref'd)(error was not preserved when appellant did not show what excluded testimony would have been). We therefore disregard appellant's fifth point of error, and consider the merits of point number four.

Carrillo had been indicted for the same crimes before appellant's trial. He had initially given a voluntary statement to police stating that he was the person who fired the gun, but that he merely shot at a nearby car to scare them, without any intention of hitting them. Subsequent to the statement, Carrillo pleaded guilty to both counts. He had not been sentenced at the time of appellant's trial.

Appellant's counsel subpoenaed Carrillo to testify, based on his belief that Carrillo wanted to testify ¹ for the appellant over the objections of his own attorney. Carrillo was sitting outside the courtroom, waiting to be called in to testify. In two separate hearings outside the presence of the jury, appellant's counsel informed the court that Carrillo would testify that neither he nor appellant had any intention of killing anyone, and that appellant did not know he was going to fire a gun. Counsel argued in the alternative that, should Carrillo decide not to testify, or not be allowed to testify, that his initial statement to the police ² should be admitted under a hearsay exception. In either case, appellant's counsel argued that Carrillo's testimony or statement would be probative, and were essential in obtaining jury instruction on the lesser included offenses of voluntary and involuntary manslaughter.

The State argued, both at trial and on appeal, that Carrillo had already pled guilty to both the murder and the attempted murder, and therefore he should not be allowed to...