Alfredo Flores, Jr. v. State of Texas--Appeal from 39th District Court of Haskell County

Opinion filed August 7, 2008

In The

Eleventh Court of Appeals

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 No. 11-07-00055-CR

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ALFREDO FLORES, JR., Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 39th District Court

Haskell County, Texas

Trial Court Cause No. 6152

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

The jury convicted Alfredo Flores, Jr. of aggravated assault. The trial court assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of eighteen years. The trial court also assessed a fine of $10,000. Appellant challenges the sufficiency of the evidence supporting his conviction in two issues. We reverse and render.

Background Facts

Appellant drove his wife, Marcy Jo Flores, and his uncle, Michael Wood, from their home in Munday to the Modern Way grocery store in Haskell on April 20, 2006.[1] They met their friend, Maria Christina Navarette, at the grocery store to purchase a birthday cake for one of Navarette=s children. While at the grocery store, Marcy told Naverette that she wanted to go to a liquor store to buy some tequila. Marcy asked Navarette to take them to a liquor store because she did not know where a liquor store was located in the area. Following Navarette=s vehicle, appellant drove Marcy and Wood to a liquor store south of Haskell. The first liquor store that Navarette took them to was closed. Naverette then took them to the Time-Out Beverage liquor store.

Marcy initially entered the Time-Out Beverage liquor store alone. Mickey Melton was the only employee working at the store at the time. He testified that Marcy came into the store looking for some tequila. She then left the store in order to get some more money. After getting money from appellant, Marcy reentered the store followed by Wood. While Melton was showing Marcy some tequila on a bottom shelf, Wood grabbed Melton around the neck from behind and began hitting him with a bottle. Wood continued hitting and kicking Melton resulting in Melton suffering severe eye and throat lacerations. James Craig Foster, a bystander that witnessed a portion of the assault, described Wood=s attack as follows: AHe was actually kicking him in the face, I would see Mickey move and he continued kicking him until I yelled at him.@ Sheriff David Halliburton testified that a large area of the liquor store was covered in blood and broken bottles.

When Foster arrived at the store in order to make a purchase from the store=s drive-through window, Wood was attacking Melton. As he approached the drive-through window, Foster observed Marcy Abolt@ from the store. Based upon this observation, Foster pulled up just far enough to look inside the store through the drive-through window. When Foster observed blood and broken glass on the floor, he attempted to retrieve his firearm from his vehicle. However, he had difficulty locating the firearm in his vehicle. After Foster retrieved the firearm, he pulled up further to the drive-through window and observed Wood assaulting Melton. Wood stopped assaulting Melton when Foster yelled at him. Wood then quickly exited the store. Foster testified that approximately three minutes elapsed between the time that he observed Marcy exit the store and the time that Wood exited the store.

Navarette testified that Wood had blood on his shirt when he ran out of the store. He reentered the car that appellant was driving, and they sped away. Foster attempted to block appellant=s vehicle with his vehicle, but he was unable to do so. Officer Donald Matthew Cunningham subsequently stopped appellant=s car in Haskell based upon a description of the vehicle that he heard on his police radio. Marcy got out of the vehicle and approached Officer Cunningham before he exited his patrol car. She advised him that they were coming from the grocery store to buy a birthday cake. When Officer Cunningham asked her if they had been to the liquor store, Marcy stated that they drove out to the store but returned to town without stopping because they saw a Acommotion@ at the store. Officer Cunningham then began questioning appellant. The questioning soon ended when Wood left the backseat of the car and fled on foot.

Appellant called Marcy as a witness at trial. She testified that she exited the store after Wood began assaulting Melton. She further testified that she did not know that Wood followed her into the store and that his attack on Melton was a surprise to her. Marcy stated that she tried to tell appellant what Wood was doing to Melton inside the store but that she did not have enough time to tell him before Wood came out of the store. Marcy testified that, after Wood entered the backseat of their car, he placed something against her neck and instructed appellant to take off.

Issues

In his first issue, appellant contends that the evidence is legally insufficient to support his conviction because the State failed to prove that appellant was a party to the offense committed by Wood. He challenges the factual sufficiency of the evidence in his second issue. We do not reach appellant=s second issue because we conclude that his conviction is not supported by legally sufficient evidence. Tex. R. App. P. 47.1.

Standard of Review

In order to determine if the evidence is legally sufficient, we must review all 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); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). If, based on all the evidence, a reasonably minded jury must necessarily entertain a reasonable doubt of the defendant=s guilt, due process requires that we reverse and order a judgment of acquittal. Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992)). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and the standard of review on appeal is the same for both direct and circumstantial evidence cases. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).

A reviewing court must give deference to Athe responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.@ Hooper, 214 S.W.3d at 13 (quoting Jackson, 443 U.S. at 318 19). Under the Jackson standard, we permit juries to draw multiple reasonable inferences as long as each inference is supported by evidence presented at trial. Hooper, 214 S.W.3d at 15. However, juries are not permitted to reach conclusions based on mere speculation or factually unsupported inferences or presumptions. Id. at 16 n.5. When we consider a contention that a jury=s finding based on inferences is not supported by legally sufficient evidence, our task is to determine whether the necessary inferences are reasonable based on the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Id. at 16 17.

Analysis

A person commits an assault by intentionally, knowingly, or recklessly causing bodily injury to another, including the person=s spouse. Tex. Penal Code Ann. ' 22.01(a)(1) (Vernon Supp. 2007). A person commits an aggravated assault by committing assault and either (1) causing serious bodily injury to another or (2) using or exhibiting a deadly weapon during the commission of the assault. Tex. Penal Code Ann. ' 22.02(a) (Vernon Supp. 2007).

Under the law of parties, a person may be charged as a party to the offense if the offense is committed by his own conduct or by the conduct of another for whom he is criminally responsible. Tex. Penal Code Ann. ' 7.01(a) (Vernon 2003). A person is criminally responsible for an offense committed by another if he intentionally promotes or assists the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person to commit the offense. Tex. Penal Code Ann. ' 7.02(a)(2) (Vernon 2003). The evidence supports a conviction under the law of parties when the person was physically present at the commission of the offense and encouraged the commission of the offense by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). To determine whether the defendant was a party, we may examine the events occurring before, during, and after the commission of the offense and rely on the actions of the defendant that show an understanding and common design to do the prohibited act. Id. The events occurring prior to the assault do not indicate that appellant was aware of Wood=s intentions. In this regard, the occupants of appellant=s vehicle followed Navarette=s vehicle to the liquor store because they did not know where a liquor store in the area was located. More significantly, the assault occurred at the second liquor store that Naverette took appellant and Wood to because the first liquor store was closed. It is illogical to conclude that appellant intended to aid Wood in committing the offense by transporting him to the crime scene because appellant was following another vehicle and the assault occurred at an alternate destination. To the contrary, Wood=s assault of Melton appears to be a random event.

With respect to the events occurring during the commission of the offense, the State directs our attention to Marcy=s observation of the beginning of Wood=s assault and her presence with appellant inside their vehicle while the assault continued for a period of perhaps three minutes in duration. Even if we speculate that Marcy informed appellant of the assault, this information does not establish a common design by appellant to assist appellant in committing the assault. There is no evidence that appellant did anything other than remain seated in his vehicle while the assault occurred. In this regard, it does not appear that appellant served as a lookout for Wood because Foster was able to intercede on Melton=s behalf without interference from appellant.

Finally, the events occurring after the commission of the offense, in and of themselves, do not establish that appellant intended to aid Melton in committing the offense. Standing alone, proof that an accused assisted the primary actor in making his getaway is insufficient to support a conviction under the law of parties. Scott v. State, 946 S.W.2d 166 (Tex. App.CAustin 1997, pet. ref=d). The State directs our attention to Marcy=s misrepresentations to Officer Cunningham after he stopped their vehicle. However, Marcy=s actions do not constitute Aactions of the defendant.@ Ransom, 920 S.W.2d at 302.

Conclusion

The random chain of events leading up to Wood=s assault of Melton establish that his extreme and senseless acts of violence could not have been predicted. Based upon the evidence offered at trial, a rational jury could not have determined beyond a reasonable doubt that appellant intended to aid appellant in committing the assault. Appellant=s first issue is sustained.

This Court=s Ruling

The judgment of the trial court is reversed, and a judgment of acquittal is rendered.

TERRY McCALL

JUSTICE

August 7, 2008

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

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Marcy testified that Wood was Alike [appellant=s] uncle@ because he was married to appellant=s aunt.