Aldo Rene Pacheco v. The State of Texas--Appeal from 238th District Court of Midland County

Opinion filed June 12, 2008

In The

Eleventh Court of Appeals

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 No. 11-07-00007-CR

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ALDO RENE PACHECO, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 238th District Court

Midland County, Texas

Trial Court Cause No. CR31738

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

The jury convicted Aldo Rene Pacheco of capital murder by murdering more than one person in the same criminal transaction. See Tex. Penal Code Ann. ' 19.03(a)(7)(A) (Vernon Supp. 2007). In accordance with the State=s waiver of seeking the death penalty, the trial court sentenced appellant to confinement for life without parole in the Institutional Division of the Texas Department of Criminal Justice. In his sole issue on appeal, appellant contends that the trial court erred in denying his motion for instructed verdict on the grounds that the State failed to prove that he committed the two murders in the same criminal transaction. We affirm.

Background Facts

Appellant fatally shot his estranged wife Barbara Pacheco, and her companion, James Wiggs, on January 16, 2006, with a shotgun. Appellant and his wife were in the process of getting a divorce. Both spouses sought custody of their four children in the divorce. The trial court awarded temporary custody of the children to appellant=s wife at a hearing that occurred on May 12, 2005. The trial court also granted appellant standard visitation with the children at this hearing.

An incident occurred on May 23, 2005, that resulted in appellant losing his visitation rights. Appellant approached his wife at their children=s daycare center and told her that they needed to talk. Appellant subsequently kidnapped his wife and assaulted her at a local motel. He attempted to take her to a room that he had rented at the motel, but she escaped to the motel office and called the police.

On the day of the abduction and assault, appellant left two letters for his brother to pick up at appellant=s place of employment. Appellant addressed one letter to his mother. He apologized to his mother and family members in the letter, presumably for what he planned to do to his wife and himself at the motel. He stated as follows in the letter:

I know you might not understand why this happened, but I found out she was seeing another guy she was involved with. If I can=t have her, then no other man is going to have her. Try to get the kids and have them in your lives. . . . If I can=t have them, she can=t have them, either.

Appellant addressed the second letter to his children. He apologized for Adoing this to you guys@ in the letter. He also stated: AYou guys would be better off without us in your life.@

Appellant had little contact with his children after the motel incident. Testifying on his own behalf, appellant stated that he was frustrated with his lack of contact with his children. Appellant=s frustration reached a breaking point when he observed his wife, Wiggs, and his two-year-old son together in a vehicle on January 16, 2006. Appellant followed them to the house where his wife and children were residing. He testified that he did this because he wanted to see his son.

A confrontation subsequently ensued between appellant and Wiggs when Wiggs exited the house to speak with appellant. Appellant testified that he retrieved the shotgun from his vehicle when it appeared that Wiggs was going to charge him and throw soda cans at him. Appellant admitted shooting Wiggs in the arm with the shotgun. Appellant testified that he then returned to his vehicle and Asat there a little bit@ thinking about what he had done. However, a witness from a nearby home testified that appellant attempted to run over Wiggs with his vehicle after he shot him. The medical examiner testified that pellets from the shotgun wound to Wiggs=s arm penetrated his chest wall and right lung. The medical examiner further testified that Wiggs bled to death as a result of the gunshot wound.

Appellant subsequently drove his vehicle through the garage door of the home and entered the residence where his wife and son were located because he still wanted to see his son. Appellant testified that he argued with his wife after he entered the residence about seeing his son. He further testified that a struggle ensued with his wife over the shotgun at which point he shot her in the abdomen. He subsequently shot her a second time in the upper body area because AI was just so angry, so mad that she tookBshe [would not] let me have my babies. That=s all I wanted, to see my babies.@ The medical examiner testified that either of the two gunshot wounds inflicted upon appellant=s wife would have been fatal. After a standoff with police lasting several hours, appellant shot himself in the head with the shotgun.

Standard of Review

A challenge to the trial court=s ruling on a motion for an instructed verdict is in actuality a challenge to the legal sufficiency of the evidence to support the conviction. Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). Therefore, when considering an issue contending the trial court erred in overruling a motion for instructed verdict, we will determine whether the evidence was legally sufficient to support the conviction. Id. We consider the evidence presented at trial by both the State and appellant in determining whether there was legally sufficient evidence. Id. In order to determine if the evidence is legally sufficient, we must review all of 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000).

Prior to addressing appellant=s contention about the sequence of the murders, we will address an ancillary issue raised in his brief. Appellant suggests that Aa serious question exists as to [his] murder of James Wiggs as an intentional murder.@ He primarily bases this contention that he shot Wiggs in the arm rather than his head or shoulder. We disagree with appellant=s contention. Intent to kill may be inferred from the use of a deadly weapon in a deadly manner. Godsey v. State, 719 S.W.2d 578, 580 81 (Tex. Crim. App. 1986). Further, A[i]f a deadly weapon is used in [a] deadly manner, the inference is almost conclusive that [the defendant] intended to kill.@ Id. at 581. The evidence shows that appellant used a deadly weapon in a deadly manner when he fatally wounded Wiggs. Furthermore, there is ample evidence that appellant was angry with Wiggs about his relationship with appellant=s wife, and a neighbor observed that appellant tried to run over Wiggs after he shot him. A rational trier of fact could have concluded from the evidence that appellant intended to kill Wiggs when he shot him.

The trial court defined Asame criminal transaction@ in the court=s charge as follows: ASame Criminal Transaction means a continuous and uninterrupted chain of conduct occurring over a very short period of time in a rapid sequence of unbroken events.@ See Heiselbetz v. State, 906 S.W.2d 500, 506 (Tex. Crim. App. 1995); Vuong v. State, 830 S.W.2d 929, 941 (Tex. Crim. App. 1992). Viewed objectively, the evidence establishes and appellant acknowledges that he shot Wiggs and his wife within a matter of a few minutes at the same location. Additionally, he used the same weapon to commit the shootings. The Court of Criminal Appeals concluded in Jackson, 17 S.W.3d at 669, that evidence of multiple victims being killed in the same manner with the same weapon in the same location is sufficient to support a jury finding that the murders occurred in the same criminal transaction.

Appellant contends that the shooting of his wife was Aa tragedy separate and apart from [his] assault on Wiggs.@ He bases this contention on his own testimony regarding his thoughts and intentions at the time of the shootings. The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). Accordingly, the jury was free to reject appellant=s self-serving description of the events that transpired. Appellant testified that his initial purpose in coming to the house was to see his son. He further testified that he entered the home after shooting Wiggs for this same purpose. Based on our review of the record, we conclude that the jury could have rationally concluded that appellant engaged in a continuous and uninterrupted chain of conduct, occurring over a short period of time, of carrying out the murder of more than one person in a rapid sequence of unbroken events. Appellant=s sole issue is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

June 12, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.