Carlos Alberto Chacon v. The State of Texas--Appeal from 337th District Court of Harris County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00070-CR

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CARLOS ALBERTO CHACON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th Judicial District Court

Harris County, Texas

Trial Court No. 898916

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

"Give them some . . . shots so that they know that this is real," the unarmed Carlos Alberto Chacon directed his two armed confederates, // immediately after the three had robbed four men, including Sergio Ramirez, and had told them to walk away. While the robbery victims were retreating, one of the robbers, Victor Sanchez, fired three shots. One of those shots hit Ramirez in the heart, killing him.

On appeal, Chacon contends the evidence was factually and legally insufficient to support his capital murder conviction and his resulting life sentence. We affirm.

When reviewing the evidence's legal sufficiency, we view the relevant 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. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In a factual sufficiency review, we view the evidence in a neutral light, favoring neither party, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.

Chacon contends on appeal that the evidence was insufficient because the State's theory, that Chacon "solicited, encouraged, directed, aided or attempted to aid" in the shooting, is inadequately supported by the evidence. This theory is supported by testimony of one of the robbery victims that Chacon specifically had told his confederates to fire their guns so the robbery victims would know "this is real." In support of his argument to the contrary, Chacon directs our attention to Luis Carreon's testimony that he, one of the robbery victims, did not hear anyone say such words, and to the uncontroverted evidence that, of the three robbers, only Chacon was not displaying a pistol during the robbery.

The alternative theory, that the attack was part of a conspiracy among the actors, is supported by the way in which the men divided their duties, with one acting as driver and two carrying weapons and threatening the victims by word and action, while Chacon moved from person to person relieving them of their valuables. The uncontroverted evidence shows that Chacon knew the other two robbery participants were carrying firearms and that they were using them to intimidate the victims by threatening them.

Chacon's argument that his capital murder conviction is unsupported by the evidence is, in essence, that he did not personally pull the trigger and that there was insufficient proof he had the intent to cause the death of a person, as required under the capital murder statute.

A person commits murder if he or she "intentionally or knowingly causes the death of an individual." Tex. Pen. Code Ann. 19.02 (Vernon 2003). A person can be convicted of capital murder if he or she "intentionally commits the murder in the course of committing or attempting to commit ... robbery." Tex. Pen. Code Ann. 19.03 (Vernon Supp. 2004). "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." Tex. Pen. Code Ann. 7.01 (Vernon 2003). A person is criminally responsible for an offense committed by the conduct of another if:

(2) 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 . . . .

. . . .

(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Tex. Pen. Code Ann. 7.02 (Vernon 2003). A person commits criminal conspiracy if, with the intent that a felony be committed:

(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and

(2) he or one or more of them performs an overt act in pursuance of the agreement.

(b) An agreement constituting a conspiracy may be inferred from acts of the parties.

Tex. Pen. Code Ann. 15.02 (Vernon 2003).

Conspiracy is seldom shown by direct evidence but often must be proved by circumstances from which the existence of the conspiracy is logically deducible. Williams v. State, 82 S.W.3d 557, 564 65 (Tex. App. San Antonio 2002, pet. ref'd).

Chacon argues that, because there is no proof he personally acted with intent to murder Ramirez, the State did not prove he had the specific intent required to establish he was guilty of capital murder. That is not, however, what is required by the statute. Section 7.02(b) provides that if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, "all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy." Tex. Pen. Code Ann. 7.02(b).

There is evidence, as set out above, which the fact-finder could accept as showing the agreement among the four robbers to commit the robbery, and the existence of a plan that divided their duties in accomplishing the robbery. The robbery at gunpoint is sufficient, standing alone, to make the shooting an act that should have been anticipated, and when an individual is shot, it must also be anticipated that the person may be injured or die as a result. See Williams v. State, 974 S.W.2d 324, 330 (Tex. App. San Antonio 1998, pet. ref'd) (killing during pawn shop robbery foreseeable where at least one conspirator present with gun). //

Although there is conflicting evidence about whether Chacon encouraged his confederates to shoot the victims, resolving conflicts in the evidence is the province of the jury, not of this Court. See Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The jury's finding was not against the great weight of the evidence. The evidence is both legally and factually sufficient to support the verdict.

We affirm the judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: December 1, 2003

Date Decided: December 2, 2003

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