Martin Guadalupe Moreno v. The State of Texas--Appeal from 229th Judicial District Court of Starr County

MEMORANDUM OPINION

No. 04-03-00405-CR

Martin Guadalupe MORENO,

Appellant

v.

The STATE of Texas,

Appellee

From the 229th Judicial District Court, Starr County, Texas

Trial Court No. 01-CR-22

Honorable Alex W. Gabert, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: August 24, 2005

AFFIRMED

Martin Guadalupe Moreno appeals the judgment convicting him of murder and sentencing him to fifteen years in the Texas Department of Criminal Justice Institutional Division. We affirm the trial court s judgment.

1. Moreno argues there was a fatal variance between the indictment, which alleged Morales was beaten to death by Moreno as the sole perpetrator, and the charge, which not only authorized the jury to find Moreno guilty as the sole perpetrator but also as a criminally responsible party who aided Felix Perez in beating Moreno to death. However, it is well settled that the court may charge the jury on the law of parties even if this theory of liability is not alleged in the indictment. See Marable v. State, 85 S.W.3d 287, 287 (Tex. Crim. App. 2002). Accordingly, we hold the variance was not fatal. Moreno also argues there was a proof-omission because the proof at trial does not comport with the conduct alleged in the indictment and in the charge. In support of his argument, Moreno cites Planter v. State, 9 S.W.3d 156 (Tex. Crim. App. 1999). But Planter is inapposite. Planter was convicted of solicitation of capital murder when the evidence established he was guilty of capital murder by solicitation, a different offense. Id. at 159. Unlike Planter, Moreno was charged with and convicted of murder. We therefore hold there was no proof-omission.

2. Moreno s primary complaint is that the State failed to produce evidence from which the jury could infer [he] possessed the requisite intent and performed the requisite acts for which the jury was only authorized to convict [him]. In essence, Moreno contends that he was merely present when Morales was beaten to death; and his involvement after Morales s murder cannot make him legally responsible for Perez s acts. We disagree. Legally and factually sufficient evidence to support the jury s verdict can be found in the testimony of Moreno s girlfriend, Blanca Estella Garza, Detective Roel R. Garcia, and Alejandro Madrigal, Jr. Garza testified that on the night of the murder Perez told her and Moreno that he wanted to kill Morales, and Perez offered Moreno money and a vehicle to help him. Garza testified that when she met Moreno and Perez in the parking lot near Morales s room later that night, Perez reiterated his desire to kill Morales, and Moreno and Perez discussed how they were going to do it. Moreno then waited while Perez got a pool stick and then followed Perez into Morales s room. Garza also testified that Moreno, like Perez, was covered in blood when he later drove the truck to an abandoned house belonging to one of his relatives to bury Morales. While in route, Perez and Moreno discussed what they had done. According to Garza, Moreno complained that his hands hurt from hitting Morales with the pool stick. Garza s testimony is corroborated by Detective Roel R. Garcia, who testified that, while Garza led him to Morales s body, she told him that Perez and Moreno had bashed in Morales s head. Garcia also testified he recovered from Moreno s house a gray T-shirt, which DNA expert Alejandro Madrigal, Jr. testified contained blood with the same DNA profile as blood recovered from a box spring in the room in which Morales was beaten to death, the butt of a marijuana cigarette found in the same room, a piece of carpet removed from the room, and a stain recovered from the truck Moreno drove.

To support his argument that the evidence is insufficient, Moreno points to evidence contrary to the jury s verdict. However, none of this evidence is so compelling that it renders the verdict manifestly unjust. In short, the proof of guilt is [not] so obviously weak as to undermine confidence in the jury s determination ; nor is it greatly outweighed by contrary proof. Martinez v. State, 129 S.W.3d 101, 106 (Tex. Crim. App. 2004). We therefore affirm the trial court s judgment.

Sarah B. Duncan, Justice

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