MARK RIOS v. THE STATE OF TEXAS--Appeal from 36th District Court of San Patricio County

 NUMBER 13-04-278-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  - EDINBURG

MARK RIOS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Castillo and Garza

Memorandum Opinion by Justice Garza

Angel Medina was shot and killed in a drive-by shooting on August 6, 2003. Appellant, Mark Rios, was indicted for Medina=s murder, along with four other co-defendants, Judas Tamayo Leal, Christopher Gutierrez, Adrian Mendoza, and Billy Joe Martinez. Appellant, Leal, and Gutierrez were tried jointly, and the jury found them guilty of murder. Appellant now challenges the legal and factual sufficiency of the evidence to support his conviction. As discussed below, we have reviewed the record and conclude that the evidence is both legally and factually sufficient to support appellant=s conviction.

I. Relevant Law

Section 19.02(b) of the penal code defines the offense of murder:

A person commits an offense if he:

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

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or

(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

Tex. Penal Code Ann. ' 19.02(b) (Vernon 2002).

In the case at bar, the jury charge authorized a conviction under the law of parties, even though the indictment did not specifically charge appellant under the law of parties. Appellant now contends that the jury should not have been given the instruction. This contention is not raised as a discrete issue but is made in appellant=s legal- and factual-sufficiency challenges. Because we affirm the judgment of the trial court based on the legal and factual sufficiency of the evidence to establish appellant=s guilt as a party to the murder (and not as a principal), we note that the law of parties need not be pled in the indictment. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005); Marable v. State, 85 S.W.3d 287 (Tex. Crim. App. 2002). A defendant may be convicted based on the law of parties as long as the jury is given an adequate instruction on the law of parties. Goff v. State, 931 S.W.2d 537, 544 (Tex. Crim. App. 1996).

Each party to an offense may be charged with the commission of the offense. Tex. Penal Code Ann. ' 7.01(b) (Vernon 2003). AA 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 responsible, or by both.@ Id. '7.01(a). The law of parties thus allows the State to enlarge a defendant=s criminal responsibility to acts in which he may not be the principal actor. Goff, 931 S.W.2d at 544. The following provision determines whether a person is criminally responsible for the conduct of another person:

(a) A person is criminally responsible for an offense committed by the conduct of another if:

(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;

(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

(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.

Tex. Penal Code Ann. ' 7.02(a) (Vernon 2003). As the court of criminal appeals recently explained, this provision establishes a party=s responsibility for the conduct of another based on the party=s Alevel of participation in the offense, even if he was not the proverbial triggerman.@ McIntosh v. State, 52 S.W.3d 196, 200B01 (Tex. Crim. App. 2001). In determining whether the defendant participated as a party, the court may look to 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 do the prohibited act. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996). Circumstantial evidence may be used to prove party status. Id.

II. Legal Sufficiency

When reviewing the legal sufficiency of the evidence, we view 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 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). We are not fact finders; our role is that of a due process safeguard, ensuring only the rationality of the trier of fact=s finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

The evidence adduced by the State at trial established that Angel Medina was gunned down outside of his house. Investigators recovered evidence from the scene that established that at least four different firearms were discharged during the attack. Medina died as a result of a single gun-shot wound to the chest. The fatal shot was fired from a 12-gauge shotgun.

Several eyewitnesses testified at trial. Their uncontradicted testimony established that the shooting was a drive-by shooting involving two cars and several gunmen. The cars were identified as a late model Monte Carlo and a four-door Mazda. These cars were seen driving past Medina=s house several times before the shooting. At least five witnesses saw appellant riding in the Mazda immediately before the shooting. One witness observed gunfire flashes emanating from the cars as they drove past Medina=s residence. The flashes were seen coming from the backseat of the Monte Carlo and from the front and rear seats of the Mazda. Another witness saw appellant and another man, Christopher Gutierrez, fire handguns in the direction of Medina=s house from within the Mazda.

Appellant argues that the evidence is legally insufficient because the State did not prove who fired the fatal shot from the 12-gauge shotgun. We disagree. A conviction can be had even if there is no evidence that the defendant fired the fatal shot. Cain v. State, 976 S.W.2d 228, 234 (Tex. App.CSan Antonio 1998, no pet.) (recognizing that, under the law of parties, the fortuity that only a bullet from a different shooter struck the victim will not absolve the defendant of criminal responsibility for murder). We believe that, in circumstances such as those presented by this case, it is unnecessary for the State to prove who fired the fatal shot in order to convict a defendant of murder under the law of parties. See id.

The essential inquiry is whether the State established beyond a reasonable doubt that appellant acted with intent to promote or assist the commission of the murder. See Tex. Penal Code Ann. ' 7.02(a)(2). As the court of criminal appeals has explained, if the defendant is not the Aprimary actor,@ the State must prove conduct constituting an offense plus an act by the defendant done with the intent to promote or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985). There is no question that Medina was murdered during the drive-by shooting. Although appellant apparently did not fire the fatal shot, he committed an act that assisted in the murder, as he fired a handgun during the drive-by shooting which killed Medina. From this circumstantial evidence, the jury could have concluded that appellant intended to promote or assist the commission of Medina=s murder. See Cain, 976 S.W.2d at 234. Appellant=s legal-sufficiency challenge is therefore overruled.

III. Factual Sufficiency

In a factual sufficiency review, the evidence is viewed in a neutral light, favoring neither party. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In this neutral light, we determine whether Athe proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A clearly wrong and unjust verdict occurs where the jury=s finding Ashocks the conscience,@ or Aclearly demonstrates bias.@ Santellan v. State, 939 S.W.2d 155, 164B65 (Tex. Crim. App. 1997). We are authorized to disagree with the fact finder=s verdict even if probative evidence exists that supports the verdict. Id. at 164; see also Johnson, 23 S.W.3d at 7.

Appellant has not identified any exonerative evidence that greatly outweighs the proof of guilt. In fact, appellant has failed to identify any evidence that is contrary to the proof of guilt. Instead, appellant=s factual-sufficiency challenge appears to rest on the contention that, when viewed in a neutral light, the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination.

In our discussion of the legal sufficiency of the evidence, we documented the evidence supporting the jury=s finding of appellant=s guilt under the law of parties. Although we now consider the evidence in a neutral light, we do not find that it is so obviously weak as to undermine confidence in the jury=s determination. We believe it is sufficient to find appellant guilty beyond a reasonable doubt. Accordingly, appellant=s factual-sufficiency challenge is overruled.

IV. Conclusion

The judgment of the trial court is affirmed.

_______________________

DORI CONTRERAS GARZA,

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 6th day of October, 2005.