Ferrel, Jay Luis v. The State of Texas--Appeal from 179th District Court of Harris County

Affirmed and Memorandum Opinion filed September 9, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00893-CR

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JAY LUIS FERREL, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from 179th District Court

Harris County, Texas

Trial Court Cause No. 894,606

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

Appellant Jay Luis Ferrel was convicted of murder. In this appeal, he contends the State s evidence was (1) legally insufficient to support the conviction and (2) insufficient to corroborate the testimony of an accomplice. We affirm.

Facts

Jesus Salazar decided to kill Felicia Ruiz because her gossiping about him was starting trouble with another gang. One night, he met with two friends, appellant and Lisa Huerta, and told them he wanted to get rid of Felicia. He asked appellant to help him find Felicia a ride for the following night. Appellant told Jesus he was unable to find Felicia a ride, even though he never looked for one.

The day after Jesus declared his intent to kill Felicia, he, appellant, and Lisa rented a motel room near a vacant field. While inside the motel room, appellant noticed Lisa brought a knife and a bat. He also heard Jesus tell Lisa that cutting someone s throat would ensure more bleeding. That night, Jesus called Felicia from the motel room and told her that he would pick her up for a Halloween party. After he left to pick her up, Lisa and appellant walked to the field nearby. A few minutes later, Jesus and Felicia arrived. As they were walking across the field, Jesus punched Felicia in the face and she fell to the ground. He immediately called for Lisa and appellant to help hold her down. Lisa tried to cut Felicia s throat, but the knife was too dull. Jesus then took the knife from Lisa and began repeatedly stabbing Felicia. Lisa tried to hold down Felicia s upper body while appellant held down her legs. After Jesus stabbed Felicia 26 times, all three accomplices abandoned her body in the field. Felicia bled to death. Jesus and Lisa walked back to the motel room and appellant went home.

Legal Sufficiency

In appellant s first point of error, he contends the evidence was legally insufficient to support his conviction for murder. Specifically, appellant contends the State failed to prove he was criminally responsible as a party to Felicia s murder. He claims that he believed Jesus and Lisa intended to beat up Felicia, not kill her. In a legal sufficiency challenge, we review the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We consider all evidence presented at trial; however, we do not re-weigh the evidence or substitute our judgment for that of the fact finder. Id. Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

Appellant is guilty of murder if he (1) intentionally or knowingly caused Felicia s death or (2) intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused her death. See Tex. Pen. Code Ann. 19.02(b)(1) & (2) (Vernon 2003). Further, a person is criminally responsible as a party to an offense if the offense was committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Id. 7.01(a)(Vernon 2003). 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. Id. 7.02(a)(2) (Vernon 2003). Here, the jury charge included the law of parties, which thus permitted the jury to convict appellant of murder as a party. See Goff v. State, 931 S.W.2d 537, 544 n.5 (Tex. Crim. App. 1996).

When reviewing sufficiency of the evidence, although an accused s presence alone at the scene of an offense is insufficient to support a conviction, it is a circumstance tending to prove guilt, which, combined with other facts, may suffice to show that the accused was a participant. See Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994). In determining whether an accused was a party, it is proper to look to events occurring before, during, and after the commission of the offense and to rely on the defendant s actions which show an understanding and common design to do the prohibited act. Id.

Appellant argues that he believed Jesus and Lisa intended only to beat up Felicia; however, there is ample evidence supporting the State s contention he intended to assist the others in murdering Felicia. In appellant s videotaped statement, he admits Jesus told him before the murder occurred that he wanted to get rid of Felicia. Although appellant did not help him find a ride for Felicia, he admits that he believed Jesus and thought he was capable of doing anything. Appellant also overheard Jesus and Lisa discussing that a cut to the throat would cause one to bleed excessively. He also noticed that Lisa had a bat and a knife in the motel room. These facts support a finding that appellant knew Jesus and Lisa planned to kill Felicia. Further, there is testimony that appellant held down Felicia s legs while Jesus stabbed her, after Lisa first tried to slit Felicia s throat. From this evidence, a jury could conclude that appellant intended to promote, assist, or aid Jesus and Lisa in killing Felicia. Finally, there is testimony that after the murder, appellant was angry when others discussed his involvement in Felicia s death. One witness testified that appellant threatened her to keep her fucking mouth shut and that s why I got your homeboy s bitch, referring to Felicia. This post-crime statement is also evidence of appellant s participation in the murder. Accordingly, we find there was legally sufficient evidence that appellant was a party to the murder of Felicia Ruiz. We overrule his first point of error.

Corroboration of Accomplice Witness Testimony

Appellant contends in his second point of error that the evidence was insufficient to corroborate Lisa s testimony against him. Lisa testified that appellant held down Felicia s legs when she was stabbed. A conviction cannot be upheld upon the testimony of an accomplice witness, unless the testimony is corroborated by other evidence connecting the defendant with the offense. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979). We determine whether accomplice testimony has been corroborated by eliminating the accomplice testimony and then examining the remaining inculpatory evidence. See McDuff, 939 S.W.2d at 612. We then determine whether the remaining evidence connects the defendant with the offense. Id.

If we eliminate Lisa s testimony, appellant s videotaped statement provides ample corroborative evidence. In the video, he admits that he believed Jesus would try to kill Felicia. He admits that he was present in the motel room while Jesus and Lisa discussed the benefits of cutting someone s throat. He further admits that Lisa had a knife and carried it with her to the field. The only inconsistency between appellant s statement and Lisa s testimony is that appellant claims he stood in the field some distance away during the stabbing. However, other evidence indicates appellant could not have witnessed Lisa s attempt to cut Felicia s throat or Jesus s stabbing of Felicia if he were in fact standing at a distance in the dark. Further, the medical evidence demonstrates that Felicia sustained extensive wounds to her upper trunk, reflecting attempts to defend against stabbing, and no wounds to her lower extremities, indicating that her legs were restrained. Even after eliminating the accomplice witness testimony, we find sufficient evidence connecting appellant to the offense. Therefore, we overrule appellant s second point of error.

Accordingly, the judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed September 9, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).