Rosillo v. State

• Decision Date: 21 August 1997
• Docket Number: No. 13-95-423-CR,13-95-423-CR
• Citation: 953 S.W.2d 808
• Parties: Raul Guerrero ROSILLO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 808

953 S.W.2d 808

Raul Guerrero ROSILLO, Appellant, v. The STATE of Texas, Appellee.

No. 13-95-423-CR.

Court of Appeals of Texas,

Corpus Christi.

Aug. 21, 1997.

Rehearing Overruled Aug. 21, 1997.

Jose E. Chapa, Jr., Yzaguirre & Chapa, McAllen, Larry Warner, Brownsville, for Appellant.

Rene Guerra, Dist. & County Atty., Theodore C. Hake, Asst. Crim. Dist. Atty., Edinburg, for Appellee.

Before SEERDEN, C.J., and FEDERICO G. HINOJOSA, Jr. and YANEZ, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

A jury found appellant, Raul Guerrero Rosillo, guilty of murder and assessed his punishment at thirty years' confinement and a $10,000.00 fine. By fourteen points of error, appellant contends that the evidence is legally and factually insufficient, that the jury charge was erroneous, that the trial court commented on the weight of the evidence, that the State's final argument was harmful, and that proceeding with the punishment phase when appellant was not present was an abuse of discretion. We affirm.

By his first point of error, appellant complains that the evidence is legally insufficient to support his conviction. Appellant contends that the evidence is circumstantial and does not eliminate other reasonable hypotheses for the shooting death of Reynaldo Galvan Leal. Appellant argues that the evidence failed to prove he was criminally responsible for the act of another and that the State failed to prove all the elements of the offense beyond a reasonable doubt.

Appellant's argument concerning the reasonable hypothesis theory of circumstantial evidence is without merit. The Court of Criminal Appeals has rejected this theory for evidentiary review. Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App.1991); Barton v. State, 882 S.W.2d 456, 458 (Tex.App.--Dallas 1994, no pet.).

When we review a legal sufficiency of the evidence point of error, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements 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); Patrick v. State, 906 S.W.2d 481, 486 (Tex.Crim.App.1995); Turro v. State, 867 S.W.2d 43, 46-47 (Tex.Crim.App.1993); Arceneaux v. State, 803 S.W.2d 267, 269 (Tex.Crim.App.1990). The standard is the same for both direct and circumstantial evidence cases. Earhart v. State, 823 S.W.2d 607, 616 (Tex.Crim.App.1991), cert. denied, 513 U.S. 966, 115 S.Ct. 431, 130 L.Ed.2d 344 (1994); Sutherlin v. State, 682 S.W.2d 546, 548-49 (Tex.Crim.App.1984); Vela v. State, 771 S.W.2d 659, 660 (Tex.App.--Corpus Christi 1989, pet. ref'd). We measure the legal sufficiency of the evidence against the indictment as incorporated into the jury charge. Fisher v. State, 887 S.W.2d 49, 55 (Tex.Crim.App.1994); Benson v. State, 661 S.W.2d 708, 715 (Tex.Crim.App.1982)(opinion on rehearing), cert. denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984).

The jury charge, incorporating the indictment, authorized the jury to find appellant guilty of murder if it believed beyond a reasonable doubt that he was the primary actor in the murder of Reynaldo Leal. Although appellant was not indicted as a party to the offense, the charge permitted the jury to convict appellant if the evidence reflected that he acted as a party rather than the principal actor. A trial court may charge on the law of parties even though there is no such allegation in the indictment. See Goff v. State, 931 S.W.2d 537, 544 n. 5 (Tex.Crim.App.1996); Crank v. State, 761 S.W.2d 328, 352 (Tex.Crim.App.1988), cert. denied, 493 U.S. 874, 110 S.Ct. 209, 107 L.Ed.2d 162 (1989).

According to the jury charge, the State had to prove beyond a reasonable doubt that on or about October 26,1993, in Hidalgo County, Texas, Raul Guerrero Rosillo intentionally and knowingly caused the death of Reynaldo Galvan Leal by shooting him with a firearm. In the alternative, under the law of parties, the State had to prove beyond a reasonable doubt that on or about October 26, 1993, in Hidalgo County, Texas, Librado Hernandez ¹ or Heriberto Lopez or Augustine Hernandez or an unknown assailant, intentionally or knowingly caused the death of Reynaldo Leal, by shooting him with a firearm, that Raul Rosillo knew the intent of these persons to shoot Leal, and that Rosillo acted with the intent to promote or assist these persons to shoot Leal, by aiding these persons when he reached behind his back and produced a gun.

A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. TEX. PENAL CODE ANN. § 7.01(a) (Vernon 1994). Under the law of parties, the State may charge a defendant with an offense in which he may not be the principal actor. See TEX. PENAL CODE ANN. § 7.01(b) (Vernon 1994); Goff, 931 S.W.2d at 544; Romo v. State, 568 S.W.2d 298, 300 (Tex.Crim.App.1977) (opinion on rehearing).

On October 26, 1993, Leal, Gilbert Ruiz, Patricia Ozuna and Alejandrina Visoso were the only persons in a bar in Edinburg, Texas. Noticing headlights in the parking lot at approximately 10:00 p.m., Ozuna moved to the front of the bar to see who had arrived. She observed a yellow and white pickup truck and a suburban. Two men got out of the suburban, reached behind their backs, and produced guns. At this point Ozuna ran out the back door and went to the owner's house to inform him of the situation. As she passed Leal, Ozuna told him to leave through the back door because the men had guns. A short time later, Ozuna heard what she described as "a lot of shots." After the shooting ceased, Ozuna went back to the bar and discovered Leal lying face down in the parking lot. Subsequently, Ozuna identified appellant as the front seat passenger of the suburban and as one of the men she saw with a gun prior to the shooting.

Gilbert Ruiz recalled Ozuna yelling that somebody was coming and that Leal should leave. Ruiz looked out and saw a two-tone suburban and a pickup truck in the parking lot. He saw four men get out of the vehicles and noticed them reach behind their backs. When he saw them approach the bar, Ruiz went out the back. Ruiz said that, although Leal had been out back when the men arrived, he went back into the bar. Ruiz then heard a few shots that suddenly developed into rapid fire. He said the shots were too numerous to count and that more than one gun was involved. When the shooting ended, he walked to the front and observed three vehicles leave the parking lot at a high rate of speed. One of the vehicles was the suburban. Leal was lying face down on the ground, and blood was everywhere. Ruiz did not see guns near the victim.

Santos Leal was the first police officer ² to respond to the shooting. Shortly after he arrived, Leal broadcast an alert for a blue and gray suburban and a red or gray pickup truck. ³ Officer Ramiro Ruiz testified that while he was backup to a traffic stop of a red pickup, he received a call about a suburban that had left a gunshot victim at the Edinburg Hospital. He responded to this call and subsequently stopped a suburban in the vicinity of the hospital. Appellant and the driver, Heriberto Lopez, were arrested on intoxication charges. No weapons were found on either person. Officer Ruiz verified that the men had left an injured person at the hospital.

Officer Rick Perez responded to the call from the hospital about a gunshot victim. The officer found that the gunshot victim was Librado Flores. Flores would not respond to Officer Perez's questioning. While at the hospital, the officer saw an EMS unit bring in Reynaldo Leal. The officer observed that the hospital staff was unsuccessful in its attempts to revive Leal. Dr. Ruben Santos, a forensic pathologist, testified that Leal's death was caused by a bullet which entered the upper right side of the chest, pierced the heart and lungs, exited the body, and re-entered the left arm, where it lodged. Dr. Santos stated that the wound was consistent with that caused by a .45 caliber weapon.

Reyes Ramirez, a criminal investigator, testified that a live .45 caliber shell was recovered from the driver's side floorboard of the suburban. In addition, seven live .45 caliber shells were discovered in Librado Flores' pants pocket, and numerous .45 caliber shells were found at the shooting scene. Officer Ramirez explained that he was present when Patricia Ozuna identified appellant as one of the men present at the time of the shooting. Mike Garza, an identification technician with the Edinburg Police Department, also testified about the .45 caliber casings, live shells, and bullets recovered from the scene. Officer Garza stated that he was present when a bullet was removed from Leal's body. He identified pictures showing that the headlight on the passenger side of the suburban had been shot out and that blood stains were found on the rear passenger side seat and window. Glass from the broken headlight was recovered from the shooting scene.

Police Chief Quirino Munoz testified that he performed atomic absorption tests on the hands of appellant, Heriberto Lopez, and Augustine Hernandez. ⁴ These tests were performed to determine whether the men had gunpowder residue on their hands. Juan Antonio Rojas, a forensic chemist for the Texas Department of Public Safety, testified that he performed a lab analysis on the absorption tests. He found that the palms of appellant's hands were positive for gunpowder residue. Rojas explained that the test indicated appellant had recently fired a gun, handled a fired gun, or was in close proximity to the barrel of a gun when it was fired. He defined close proximity as one foot from the gun or being right next to the shooter.

We conclude that this evidence is sufficient to allow a jury to believe beyond a reasonable doubt that appellant was the primary shooter or that, by...