JIMMY ARISTIDES VELASQUEZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued November 29, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01714-CR
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JIMMY ARISTIDES VELASQUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-47491-HU
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OPINION
Before Justices Whittington, Bridges, and Francis
Opinion By Justice Bridges
        A jury convicted Jimmy Aristides Velasquez of capital murder, and the trial court assessed a mandatory life sentence. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm.
Background
 
        At approximately 1:45 a.m. on March 15, 2005, Favio Andrade, Bernardo Andrade, and Eddie Pech died after their blue Crown Victoria was sprayed with bullets from an assault-type weapon. The vehicle wrecked into bushes and a barrier wall at the intersection of Mockingbird and Central Expressway after the shooting. Autopsies on the victims showed Favio died from gunshot wounds to his head and back, Bernardo died from a single gunshot wound to his head, and Eddie died from gunshot wounds to his head, abdomen, back, and right elbow. Several witnesses told officers they saw a man standing in the sun roof of a white Jaguar as it chased a blue Crown Victoria. The man standing in the sun roof was firing a rifle at the blue car, then the blue car wrecked into the bushes and wall. The police located the white Jaguar the next day and determined it belonged to Fernando Balderas. The police also recovered twenty-four shell casings from the roadway, a Norinco rifle, four magazines with a total of ninety-one live cartridges, and bullet fragments from the Crown Victoria and the victims' bodies. Later analyses showed the bullet fragments and cartridges found in the roadway were fired from the Norinco rifle.
        At trial, several witnesses testified all three victims were involved in a fight with three Hispanic men at a club around midnight. The men were later identified as Fernando Balderas, Israel Berratero, and appellant. Christina Solis, who is Fernando's girlfriend, testified she followed Fernando, Israel, and appellant outside when the bouncers escorted them to the parking lot. Fernando had been cut on the head and wrist during the fight, and was treated after an ambulance arrived. A paramedic suggested Fernando go to the hospital to get stitches. Fernando, Christina, and Christina's aunt got in the back seat of the Jaguar and appellant and Israel got in the front seats. Christina could not recall who was driving. Crystal Mondragon, Christina's aunt, testified appellant was driving the Jaguar. Both Christina and Crystal testified appellant and Israel drove to the hospital emergency room, dropped them off with Fernando, then left in the Jaguar.
        Dallas police officer Marshall McLemore worked as an off-duty officer at the club that night. McLemore testified Fernando, appellant, and a third man were escorted out of the club sometime after midnight. Because Fernando was bleeding, McLemore called an ambulance. While Fernando was being treated, appellant and the other man stood next to a white Jaguar. After Fernando was treated, McLemore saw Fernando and a woman get in the back seat of the Jaguar while appellant and the other man got in the front seats.
        Several witnesses testified they saw a man standing in the sun roof of a white car while firing a rifle at a blue car. Brian Love testified that as he was leaving the Southern Methodist University campus, he saw a white car stopped in the middle of the Central Expressway service road heading towards Mockingbird. He saw a person run from the trunk to the front passenger side and get into the front passenger seat. The white car then accelerated towards Mockingbird. There was a car in the far left lane, a blue car in the center lane, and the white car pulled up next to the passenger side of the blue car. Love saw a person in the white car stand up in the sun roof and fire gunshots at the blue car. The shooter wore a dark-colored shirt, and the gun resembled an AK-47 rifle. The car in the far left lane turned left abruptly, but the blue car went straight through the red light, followed by the white car. Love testified he did not move until the gunfire stopped, then continued on the service road toward Mockingbird and saw the blue car crashed on the side of the road. Love testified he saw two people in the white car, a driver and the shooter.
        Jaimy Najera, Ciro Castellanos, and Jesus Hernandez were in the vehicle sitting in the far left lane. They had all been to the club with the three victims earlier that morning, but did not know the men who had been escorted out of the club after the fight with the three victims. Jaimy, Ciro, and Jesus left the club with the three victims, driving separate vehicles, intending to meet at Jesus's house. Jaimy testified she heard gunshots behind her as they stopped for a red light at the intersection of Mockingbird and Central Expressway. She immediatedly ducked down, then accelerated through the red light and turned left. The victims also accelerated, but they went straight ahead. Jaimy, Ciro, and Jesus all testified they saw a white car driving close behind the victims' car. They could still hear gunshots after they turned left. Jesus testified that as they waited at the red light, he looked back and saw a person standing through the sun roof of a white car pointing and firing a “big weapon” at the blue car. After the blue car accelerated through the red light, the white car followed it and the person in the sun roof continued firing gunshots.
        Dallas police officers Chris Gipson and Princess Colthurst were proceeding towards the Mockingbird and Central Expressway intersection while transporting a female prisoner to the jail. They heard gunshots, but did not know from which direction they originated. Both Gipson and Colthurst saw a white vehicle go across the intersection heading south on the service road. The white car was traveling fast and flashes of light came from the top of the vehicle. Gipson testified he saw a shadow of a person at the top of the white car. Colthurst saw a person standing through the sun roof of a white car while firing an automatic weapon. Both Gipson and Colthurst testified they could not pursue the white car because they were transporting a prisoner at the time. When they proceeded to the intersection, they saw a blue car wrecked on the side of the road, but no sign of the white car.
        Several witnesses told police officers they saw appellant with Israel several hours after the shootings had occurred. At trial, Yvette Solis testified she saw appellant with Israel when they parked the white Jaguar in her driveway at about 3:00 a.m. Yvette left her house at about 2:00 a.m. to pick up her daughter Christina from the hospital. When they returned to the house, Christina changed clothes and took Yvette's car to go back to the hospital. Yvette went back to bed. She saw headlights in her windows at about 3:00 a.m. Yvette testified her driveway is shaped like a letter “S” from the street to the back of the house. When she went to the door, she saw a brown-colored Cadillac and Israel in the driveway. Israel was walking to the steps when she opened the door. Israel gave her the “keys to Fernando's car,” then she heard a voice at the side of her house. Yvette testified she saw appellant coming from the side of the house. Both Israel and appellant left in the Cadillac. Later that morning when Yvette left for work, she saw a white Jaguar parked at the top of her driveway. Yvette testified she had seen appellant three or four times previously, and each time she saw him, appellant was with Israel.
        Simon Tinoco saw appellant and Israel in the early morning hours on March 15, 2005, when they asked him to keep something. Tinoco testified that sometime between 3:00 a.m. and 4:00 a.m., Israel and appellant knocked on his door. When he opened the door, Israel told him to come to the car, which was parked on the street. Simon, Israel, and appellant went to the trunk of the car. Israel said, “[C]an you hold something for me?” and took a long black case out of the trunk. Simon later discovered the case contained a rifle. At the time Israel gave him the rifle, Simon asked, “[W]hat happened.” Appellant said, “[W]atch the news.” Tinoco eventually showed the rifle to his brother Marco and a friend, Felipe Vasquez. They decided to hide it under a dog house in Felipe's back yard. Felipe buried the gun and case under the dog house. About two days later, Simon and Felipe led U.S. marshals to the dog house where marshals recovered the gun and case.
        Detective Darrell Doty testified appellant's right middle finger, right index finger, right thumb, and palm matched prints lifted from the outside of the white Jaguar. Vicki Hall, a trace evidence examiner at the Southwestern Institute of Forensic Sciences, testified gunshot residue was found inside the sun roof and the “right back” of the white Jaguar. None of the three victims had gunshot residue on their hands. Angela Fitzwater, a forensic biologist at the Southwestern Institute of Forensic Sciences, testified DNA was found on the rifle's trigger, a cloth cut from the seat of the suspect vehicle, and from the outside driver's door. All of the DNA samples matched Israel, and none matched appellant.
        Three defense witnesses were called at trial. Salina Castillo testified she saw a Crown Victoria pass the vehicle she was riding in and saw a white Jaguar following behind it. Someone in the Jaguar was shooting at the Crown Victoria. Salina testified she saw three people in the Jaguar, “a person driving, a person in the sun roof, and a passenger.” During cross-examination, Salina testified she had several alcoholic drinks at the club earlier and it was possible she mistook the shooter's legs for another person in the Jaguar.
        Lavan Alexander testified he was with Yvette Solis when Christina called her. Lavan initially testified Yvette never left the house to pick up Christina, but later testified he moved a vehicle in the driveway so Yvette could leave to pick up Christina. Lavan also testified he identified Israel in his written statement to the police as one of the men who left the white Jaguar in Yvette's driveway.
        Carmen Velasquez, appellant's mother, testified appellant got home before 2:00 a.m. on March 15, 2005, and could not have been with Israel at 3:00 a.m. dropping off a car. The police came to her house and arrested appellant on March 16, 2005, and she told them that appellant was home at 2:00 a.m. the day before. Appellant did not testify at the trial.
Applicable Law
 
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and 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); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). The standard is the same for both direct and circumstantial evidence cases. See Burden v. State, 55 S.W.3d 608, 613 (Tex. Crim. App. 2001); Bates v. State, 155 S.W.3d 212, 215 (Tex. App.-Dallas 2004, no pet.). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007), petition for cert. filed, (U.S. July 17, 2007) (No. 07- 5500); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), petition for cert. filed, (U.S. Mar. 13, 2007) (No. 06- 11318). Unless the record clearly reveals a different result is appropriate, we must defer to the fact- finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        To obtain a capital murder conviction, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the death of Favio Andrade and during the same criminal transaction appellant intentionally or knowingly also caused the death of Bernardo Andrade. See Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(7)(A) (Vernon 2003 & Supp. 2007).
        The jury was instructed it could find appellant guilty if it found he acted as a party to the offense. See Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003). 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. See id. § 7.01(a). A person is criminally responsible for an offense committed by the conduct of another if, 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. See id. § 7.02(a)(2). In determining whether the accused is guilty as a party, the fact finder may consider events occurring before, during, and after commission of the offense. Michel v. State, 834 S.W.2d 64, 67 (Tex. App.-Dallas 1992, no pet.).
Discussion
 
        Appellant argues the evidence is legally and factually insufficient because his fingerprints were not found inside the Jaguar, DNA from the rifle and the Jaguar matched Israel's DNA, and Israel was driving the Jaguar. Appellant asserts there is no direct evidence he was either the primary actor or a party to the murders. The State responds that the evidence is legally and factually sufficient to prove appellant committed the offense under the law of parties.
        The jury was charged it could find appellant guilty of capital murder as a principal, a party to the offense, or not guilty. Three witnesses testified appellant was in the front seat of the white Jaguar when it left the club sometime after 1:00 a.m. While Christina and McLemore did not recall who was driving, they both testified appellant got in the front seat. Crystal, who was in the back seat of the Jaguar, testified appellant was driving. The Jaguar was seen at the hospital dropping off three people, two women and a man, while two people in the front seats stayed in the vehicle. At about 1:45 a.m., witnesses saw the passenger in the Jaguar stand up in the sun roof and fire a rifle directly at a blue car, killing three individuals. Yvette testified appellant and Israel parked the Jaguar in her driveway at about 3:00 a.m. And Simon testified that sometime between 3:00 a.m. and 4:00 a.m., appellant and Israel came to his house and gave him the murder weapon, asking him to keep it for them. When Simon asked what had happened, appellant responded, “[W]atch the news.”
        We conclude the sum total of the evidence is sufficient to support a rational jury's finding beyond a reasonable doubt that appellant, at a minimum, acted as a party in the commission of the murders of Favio and Bernardo Andrade, and is legally and factually sufficient to support the conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92; Michel, 834 S.W.2d at 67. We resolve appellant's issues against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
061714F.U05