RUBEN MONTES MORALES v. THE STATE OF TEXAS--Appeal from 275th District Court of Hidalgo County

   NUMBER 13-03-461-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

RUBEN MONTES MORALES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 275th District Court

of Hidalgo County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Castillo and Garza

   Opinion by Chief Justice Valdez

Following a bench trial, appellant, Ruben Montes Morales, was found guilty of capital murder and attempted capital murder; appellant was sentenced to life imprisonment and fifty years= imprisonment respectively. Appellant raises two issues on appeal: (1) the evidence is legally insufficient to establish the necessary elements of capital murder during the course of committing or attempting to commit the offense of aggravated kidnapping, and (2) the evidence is factually insufficient to establish that appellant committed capital murder during the course of committing or attempting to commit the offense of aggravated kidnapping. We affirm the judgment of the trial court.

Background

In the early morning hours of June 2, 2002, Saul AMomo@ DeLeon was shot to death in front of his residence in a mobile home park in Pharr, Texas. Cruz Cortez, Momo=s friend, was shot behind his ear, but survived. The evening before the shootings, Momo had hosted a barbecue at his home which was attended by friends and family. Among those present were Momo=s common-law wife, Jennifer DeLeon, and Jennifer=s sister, Norma DeLeon. After the barbecue concluded, everyone left except for Momo, Cruz, Jennifer, and Norma. Momo and Cruz sat outside in Cruz=s brother=s truck drinking beer and listening to music while Jennifer and Norma remained inside the trailer with Jennifer=s baby. Around midnight, appellant and an unidentified group of men arrived at Momo=s trailer home and confronted Momo. Appellant allegedly struck Momo in the head with a gun and ordered at least two of the unidentified men to remove Cruz from the truck. As per appellant=s orders, the men grabbed Cruz, tied him up with duct tape, and then threw him in the back of the truck.

Norma testified that she heard people arguing and yelling and looked outside to see what was happening. She saw appellant and Momo arguing and quickly woke Jennifer. Jennifer testified that she looked outside and witnessed two or three men attempting to throw Momo in the truck; Momo struggled to resist their attempt. Norma saw two men in the bed of the truck, one of them armed, but did not see that they were holding down Cruz. Jennifer testified that she did see Cruz in the bed of the truck. Both Norma and Jennifer testified that appellant saw them looking through the window and ordered them to open the door. When Norma and Jennifer threatened to call the police, appellant brandished a gun and allegedly threatened to kill Momo and to hurt them. Jennifer grabbed her son, and she and Norma ran into the bathroom to hide. Cruz was shot once in the back of the head near his ear. Then, gunshots rang out and Momo called out for Jennifer=s help. A few minutes later, Jennifer and Norma left the bathroom and saw Momo lying near the door. He was bloodied and semi-conscious. Although no one who testified at trial actually witnessed Momo=s shooting, Cruz, Jennifer, and Norma each witnessed appellant brandish a gun. Cruz also heard appellant tell his accomplices that he was going to kill everybody and take Cruz=s brother=s truck.

Legal and Factual Sufficiency of the Evidence

In evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Cardenas v. State, 30 S.W.3d 384, 389-90 (Tex. Crim. App. 2000). The legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge for the case that would set out the law, be authorized by the indictment, not unnecessarily increase the State=s burden of proof or unnecessarily restrict the State=s theories of liability, and adequately describe the particular offense for which the defendant was tried. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). This standard applies to both jury and bench trials. Id.

In evaluating factual sufficiency of the evidence, we review the evidence in support of and contrary to the trier of fact's findings to determine whether the evidence is so weak that it renders the verdict clearly wrong and manifestly unjust or the verdict is contrary to the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1997).

Applicable Law

A person commits capital murder if he commits murder as defined under section 19.02(b)(1) and intentionally commits the murder in the course of committing or attempting kidnapping, burglary, etc. Tex. Pen. Code Ann. ' 19.03(a)(2) (Vernon 2003). A person commits murder under section 19.02(b)(1) if he intentionally or knowingly causes the death of an individual. Id. ' 19.02(b)(1).

Appellant was specifically charged with committing capital murder while in the course of committing or attempting to commit aggravated kidnapping. A person commits aggravated kidnapping if he intentionally or knowingly abducts another person with the intent to (1) hold him for ransom or reward, (2) use him as a shield or hostage, (3) facilitate the commission of a felony or the flight after the attempt or commission of a felony, (4) inflict bodily injury on him or violate or abuse him sexually, (5) terrorize him or a third person, or (6) interfere with the performance of any governmental or political function. Id. '20.04(a)(1)-(6) (Vernon 2003). A person also commits aggravated kidnapping if he intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense. Id. '20.04(b).

A person commits criminal attempt if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. Id. ' 15.01(a).

Analysis

By his first issue, appellant argues that the evidence is legally insufficient to establish the necessary elements of capital murder in the course of committing or attempting to commit the offense of aggravated kidnapping.

By his second issue, appellant argues that the evidence is factually insufficient to establish that he committed capital murder during the course of committing or attempting to commit the offense of aggravated kidnapping. More specifically, he complains that the evidence fails to prove beyond a reasonable doubt that he shot and killed Momo and/or shot and wounded Cruz while in the course of committing or attempting to kidnap them.

I. Capital Murder

The evidence adduced at trial establishes that Momo was gunned down in front of his trailer home. He sustained seven gunshot wounds, six of which were from a distance and the other at close range. Witness testimony placed appellant at the scene of the crime with a firearm. Appellant was observed striking Momo in the head with the gun, aiming it towards Jennifer and Norma, and threatening to kill Momo if Jennifer and Norma did not open the trailer door to allow him entry. Momo was in close proximity to appellant as this occurred. Jennifer and Norma rejected appellant=s demand and ran to the bathroom to hide. While running for safety, Norma testified that she saw Momo run inside and attempt to hold the door shut as if someone was trying to get in. Almost immediately thereafter, gunshots were fired and Momo died as a result of multiple gunshot wounds.

The evidence supports the contention that either as the principal actor or a member of a larger criminal party, appellant intentionally killed Momo. The law of parties allows the State to enlarge a defendant's criminal responsibility for acts in which he may not be the principal actor. Goff v. State, 931 S.W.2d 537, 544 (Tex. Crim. App. 1996). 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. Appellant=s apparent authority over his accomplices and the multitude of gunshots from both close range and beyond reflect that appellant and his accomplices aided each other in Momo=s shooting death, and that appellant could properly be charged as a principal or a party with Momo=s death.

II. Aggravated Kidnapping

There was sufficient evidence presented at trial to support the finding that appellant attempted to kidnap Momo and Cruz. Appellant directed at least two of his accomplices to (1) tie Cruz=s arms and legs with duct tape, (2) place him on the back of Cruz=s brother=s truck, and (3) shoot him if he moved. Also, Cruz heard appellant tell his accomplices that they were going to take the truck. Finally, Jennifer saw some of the men attempt to throw Momo on the truck. Like Cruz, Momo had duct tape on his wrist as if someone attempted to tie him up. Once again, either as the principal actor or a party member, it is apparent that appellant intended and attempted to kidnap Momo and Cruz.

When viewed in the light most favorable to the verdict, we conclude that a rational trier of fact could have found that appellant committed capital murder in the course of attempting to kidnap Momo and Cruz. See Jackson, 443 U.S. at 318-19. We overrule appellant=s first issue.

Furthermore, we cannot rule that the evidence is so weak that it renders the verdict clearly wrong and manifestly unjust or that the verdict is contrary to the evidence. See Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. We also overrule appellant=s second issue.

Conclusion

We affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Do not publish.

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

Memorandum Opinion delivered and filed

this 17th day of November, 2005.