Bruno Aviles v. State

Opinion issued February 3, 2011.

In The

Court of

Appeals

For The

First District

of Texas

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NO. 01-09-01017-CR

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Bruno Aviles , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Case No. 1175814

MEMORANDUM OPINION

Appellant,

Bruno Aviles, appeals from a judgment sentencing him to 99 years’ confinement

for felony murder. See Tex. Penal Code Ann.

§ 19.02(b)(3) (Vernon 2003). Appellant

pleaded not guilty. A jury found

appellant guilty and determined his sentence.

In three issues, appellant contends that (1) the State’s felony murder

indictment was improper because deadly conduct cannot be an underlying felony

offense for felony murder, (2) the trial court erroneously charged the jury

with the wrong culpable mental state for deadly conduct, and (3) the evidence

is legally insufficient to support his conviction. We affirm.

BACKGROUND

The

day she was shot, Velia Ortega was living with her daughter, Roxanna Garza, and

two of her grandchildren, Albert Garza and Brianna Salinas, in an apartment in

southeast Houston. The series of events

that lead to Ortega’s death began in July 2008 when Andrew Garcia decided to illegally

repossess a blue Cadillac that he had sold Ortega’s grandson, Albert, a year earlier.

During Albert’s year of ownership, Roxanna

typically drove the Cadillac and parked it at her apartment where the family

lived. Once Garcia decided to repossess

the Cadillac, he asked an acquaintance of his, David Gomez, to tow the Cadillac

from Roxanna’s apartment. Gomez found

the car at Roxanna’s apartment and towed it to Garcia’s location. Garcia was with appellant and another friend,

Raziel Munoz, when Gomez delivered the car.

Although Garcia did not have keys to the Cadillac, he broke the steering

column housing and rigged the car’s wiring to start the car. Garcia and appellant later acquired

aftermarket chrome rims and installed them on the Cadillac.

Roxanna eventually noticed the

Cadillac was missing from its typical parking space so she reported it stolen

to the police. Later, she discovered from neighbors that Gomez had towed the

car so she contacted him. Roxanna

informed Gomez that the Cadillac belonged to her son and that she wanted it

returned. After Roxanna spoke with him,

Gomez searched for the Cadillac and found it at a nearby hotel. Gomez then towed the Cadillac back to Roxanna’s

apartment without informing Garcia.

Garcia,

Munoz, and appellant were at a hotel when Gomez returned the car back to

Roxanna’s apartment. When Garcia

discovered that the Cadillac was missing from the hotel parking spot, he called

Gomez and asked whether he had towed the Cadillac. Garcia and appellant became angry when Gomez replied

that he had towed the car back to its original location.

After

Garcia spoke with Gomez, appellant traveled to Roxanna’s apartment and used

Munoz’s vehicle to survey her apartment complex. Appellant found the Cadillac parked at the

complex. Appellant returned to the hotel

and picked up Garcia and Munoz. The

three of them then went to a “dope house” in the Manchester neighborhood of

Houston where Garcia and appellant acquired an AK-47 assault rifle. Garcia also carried a revolver during this

episode.

Munoz then drove Garcia and

appellant to Roxanna’s apartment. The

men tried to find the Cadillac but, unbeknownst to them, Roxanna had moved the

Cadillac and was driving it to her boyfriend’s sister’s house. She removed the Cadillac from her apartment

because once she noticed the new rims on the Cadillac, she suspected the rims might

incite violence and she did not want to endanger her family by parking the

Cadillac at the apartment.

Upon

discovery that the Cadillac was not at the apartment, appellant called Roxanna asking

that she return the rims. Roxanna

responded to appellant that he needed to call the Houston Police Auto Theft Division

and obtain the rims from the police. Appellant

became upset and mentioned to Roxanna her apartment number. Realizing that the caller knew where she

lived, Roxanna became frightened and hung up to call 911. Appellant called Roxanna again, and she again

informed him that he needed to call the Auto Theft Division.

At

this point, appellant used the AK-47 to shoot a full clip of ammunition into

Roxanna’s apartment. Appellant shot

approximately 30 rounds. Garcia also fired shots with his revolver from inside

the vehicle. Albert’s grandmother,

Ortega, and his sister, Salinas, were inside Roxanna’s apartment when appellant

fired the AK-47. Appellant did not hit

Salinas with his gunfire, but he did hit Ortega.

After the shooting ceased, Salinas

went into the living room where she found Ortega slumped over in her wheelchair

bleeding from a gunshot wound to her abdomen.

Shortly thereafter, Roxanna received a call from a 911-dispatcher who

told her that there had been a shooting at her apartment. Roxanna and her boyfriend drove back to the

apartment. When Roxanna arrived at the

scene, Ortega was on a stretcher and paramedics were caring for her. At this point, appellant called Roxanna

again. He said, “I’m serious. I want my

rims. If I don’t get my rims by 12:00

midnight, I’m going to kill you.” Ortega

died from her injuries 21 days later.

Witnesses to the shooting described

Munoz’s vehicle to the police as a gold or tan Chevrolet Tahoe. The police located the Tahoe on the evening

of the shooting and conducted surveillance.

When Munoz returned to the truck the police arrested him. The police questioned Munoz and he identified

himself as the driver of the truck, and identified Garcia and appellant as the

gunmen in the shooting. Munoz identified

appellant specifically as the person who shot Roxanna’s apartment with an AK-47. The police later apprehended Garcia and

appellant.

The State indicted appellant for

felony murder and alleged the underlying felony was deadly conduct. At trial, Munoz testified for the State and

gave a detailed description of the events leading up to and including the

shooting. The State also presented testimony from other witnesses, including

neighbors who saw the shooting, members of Ortega’s family, police officers

that responded to and investigated the shooting, police officers from the gang

unit, and others. Appellant did not

testify and did not present any witnesses.

The jury returned a guilty verdict.

This appeal followed.

SUFFICIENCY OF THE EVIDENCE

In

his third issue, appellant contends the evidence is legally insufficient to

prove his guilt for the offense of felony murder.

A. Standard

of Review

Evidence is legally insufficient to support a conviction if,

considering all the record evidence in the light most favorable to the verdict, no

rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See

Jackson v. Virginia , 443 U.S. 307, 319 , 99

S. Ct. 2781, 2789 (1979) ; Laster v. State , 275 S.W.3d 512, 517

(Tex. Crim. App. 2009); Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Viewed in the light most

favorable to the verdict, the evidence is insufficient under this standard in

two circumstances: (1) the record

contains no evidence, or merely a “modicum” of evidence, probative of an element

of the offense; or (2) the evidence conclusively establishes a reasonable

doubt. Laster , 275 S.W.3d at 518 ; Williams , 235 S.W.3d at 750 .

If an appellate court finds the evidence

insufficient under this standard, it must reverse the judgment and enter an

order of acquittal. See Tibbs v. Florida , 457

U.S. 31 , 41–42, 102 S. Ct. 2211, 2218 (1982).

An appellate court determines

whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to

the verdict. See Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes that the fact finder

resolved any conflicting inferences in favor of the verdict and defers to that

resolution. See Jackson , 443 U.S. at 326 , 99 S. Ct. at 2793 ; Clayton , 235 S.W.3d at 778 . A n

appellate court may not re-evaluate the weight and credibility of the record

evidence and thereby substitute its own judgment for that of the fact

finder. Williams , 235 S.W.3d at

750 .

B. Felony

Murder and Deadly Conduct

The felony murder statute provides

that a person commits murder if he “commits or attempts to commit a felony,

other than manslaughter, and in the course of and in furtherance of the

commission or attempt, or in immediate flight from the commission or attempt,

he commits or attempts to commit an act clearly dangerous to human life that

causes the death of an individual.” Tex. Penal Code Ann. § 19.02(b)(3);

Contreras v. State , 312 S.W.3d 566 ,

583–84 (Tex. Crim. App. 2010). A

conviction for felony murder under section 19.02(b)(3) will not lie when the

underlying felony is manslaughter or a lesser included offense of

manslaughter. Johnson v. State , 4 S.W.3d 254, 258 (Tex. Crim. App. 1999). A person commits manslaughter if he

recklessly causes the death of an individual.

Tex. Penal Code Ann.

§ 19.04(a) (Vernon 2003).

The underlying felony in appellant’s

case was deadly conduct. As alleged in

the indictment, a person commits felony deadly conduct if he intentionally and knowingly

discharges a firearm (1) at or in the direction of one or more individuals or

(2) at or in the direction of a habitation, building, or vehicle and is

reckless as to whether the habitation, building, or vehicle is occupied. See id.

§ 22.05 (Vernon 2003).

C. Legal

Sufficiency

Appellant

asserts the evidence is legally insufficient to support his conviction for

felony murder. Munoz identified

appellant in the courtroom. Munoz then testified

that appellant shot approximately 30 rounds from an AK-47 assault rifle at

Roxanna’s apartment. Munoz further testified that appellant shot Roxanna’s house

without confirming that the house was empty. Finally, the State presented

evidence that it was a bullet from the AK-47 that caused the death of Ortega.

Appellant asserts that the evidence

is insufficient because it did not show that it was appellant’s conscious

objective to kill Ortega and did not show he was aware his conduct was

reasonably certain to cause death.

Because the State had to prove felony murder predicated on felony deadly

conduct, and, therefore, did not have to prove appellant intended to kill

Ortega, it was inconsequential whether appellant had the conscious objective to

kill Ortega or whether he was aware that his conduct was reasonably certain to

cause death.

Viewing all evidence in the light

most favorable to the verdict, the evidence shows that a jury could reasonably

find beyond a reasonable doubt that appellant knowingly discharged a firearm in

the direction of a habitation and was reckless as to whether the habitation was

occupied and, therefore, committed felony deadly conduct. See id.

The evidence also demonstrates that a jury could reasonably find beyond a

reasonable doubt that in the course of appellant’s felony deadly conduct he

committed an act clearly dangerous to human life and that act caused the death

of Ortega. See id. § 19.02(b)(3). We

conclude, therefore, that the evidence is legally sufficient. See

Davis v. State , 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.] 2005, no

pet.) (holding testimony by one witness legally sufficient to support

conviction).

We overrule appellant’s third

issue.

LESSER-INCLUDED OFFENSE

In

his first issue, appellant contends his conviction was improper because the deadly

conduct as alleged was a lesser-included offense of manslaughter. The indictment stated that appellant,

Did then and there

unlawfully, intentionally and knowingly commit the felony offense of DEADLY

CONDUCT by DISCHARGING A FIREARM IN THE DIRECTION OF A HABITATION AND WAS

RECKLESS AS TO WHETHER THE HABITATION WAS OCCUPIED, and while in the course of

an furtherance of the commission of said offense did COMMIT an act clearly

dangerous to human life, to-wit: SHOOTING VELIA ORTEGA WITH A DEADLY WEAPON, NAMELY

A FIREARM, and did thereby cause the death of VELIA ORTEGA.

A conviction for felony murder under section

19.02(b)(3) of the Texas Penal Code will not lie when the underlying felony is

manslaughter or a lesser included offense of manslaughter. See Johnson ,

4 S.W.3d at 258 ; see also Tex. Penal Code Ann. § 19.02(b)(3). A person commits manslaughter if he

recklessly causes the death of an individual.

Tex. Penal Code Ann. §

19.04(a). Here, the underlying felony in

appellant’s case was deadly conduct. A

person commits felony deadly conduct if he knowingly discharges a firearm at or

in the direction of a habitation and is reckless as to whether the habitation

is occupied. See id. § 22.05.

Appellant asserts the deadly conduct

as alleged in this case qualifies as a lesser-included offense of

manslaughter. An offense qualifies as a

lesser included offense only if:

(1) it is established by

proof of the same or less than all the facts required to establish the

commission of the offense charged;

(2) it differs from the

offense charged only in the respect that a less serious injury or risk of

injury to the same person, property, or public interest suffices to establish

its commission;

(3) it differs from the

offense charged only in the respect that a less culpable mental state suffices

to establish its commission; or

(4) it consists of an

attempt to commit the offense charged or an otherwise included offense.

Tex. Code Crim. Proc. Ann. art. 37.09

(Vernon 2006).

Contrary to appellant’s contention,

the deadly conduct as alleged is not a lesser included offense of

manslaughter. First, to prove deadly

conduct as alleged in this case, the State had to show that appellant

intentionally and knowingly discharged a firearm, a fact not required to

establish the offense of manslaughter under the first criterion of article

37.09. See id. art. 37.09(1). Second,

the deadly conduct also required proof of discharging a firearm, therefore, it was

not a lesser included offense of manslaughter under the second criterion of article

37.09. See id. art. 37.09(2). Third,

the deadly conduct as alleged required proof of intentional and knowing conduct

that would not be required for the State to prove manslaughter. Because it differed from manslaughter more

than just in the respect that a different culpable mental state sufficed to

establish its commission, the deadly conduct as alleged was not a lesser

included offense of manslaughter under the third criterion of article 37.09. See id.

art. 37.09(3). Finally, the deadly

conduct as alleged was not simply an attempt to commit manslaughter; therefore,

it also failed to qualify as a lesser included offense under the fourth

criterion of article 37.09. See id. art. 37.09(4). Because the deadly conduct as alleged in the

indictment was not a lesser included offense of manslaughter under the criteria

set out in article 37.09, we conclude that the deadly conduct offense as alleged was not a lesser

included offense of manslaughter. See

Yandell v. State , 46 S.W.3d 357, 361 (Tex. App.—Austin 2001, pet. ref’d)

(holding deadly conduct was not lesser included charge of manslaughter under

article 37.09).

We overrule appellant’s first issue.

JURY

CHARGE

In

his second issue, appellant contends the trial court erred by failing to

properly limit the relevant conduct elements in the jury charge to the

appropriate culpable mental states for the deadly conduct offense. The State concedes that “it was error for the

trial court to define all three mental states as to the result of one’s conduct

only” because the jury charge should have defined “intentionally” and

“knowingly” with respect to the nature of appellant’s conduct and have defined

“recklessly” with respect to the circumstances surrounding appellant’s

conduct. See Tex. Penal Code Ann.

§ 6.03(a)–(d) (Vernon 2009); see also Ash

v. State , 930 S.W.2d 192, 194 (Tex. App.—Dallas 1996, no pet.) (noting that

offenses may involve one or more of three conduct elements: (1) nature of

conduct; (2) result of conduct; and (3) circumstances surrounding conduct).

Appellant

failed to object to the jury charge at trial; therefore, we review the error to

see if it was so egregious that appellant was denied a fair and impartial

trial. See Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). For both preserved and unpreserved charging

error, the actual degree of harm is assessed in light of the entire jury

charge, the state of the evidence, including the contested issues and weight of

the probative evidence, the argument of counsel, and any other relevant

information in the record. Almanza , 686 S.W.2d at 171 ; see also Hutch v. State , 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).

We begin by looking to the

application paragraphs to determine whether the charge as a whole properly

focused the jury on the applicable conduct element. See Patrick

v. State , 906 S.W.2d 481, 492 (Tex. Crim. App. 1995) (noting that when

determining harm suffered from inclusion of improper conduct elements in definitions

of culpable mental states, we “may consider the degree, if any, to which the

culpable mental states were limited by the application portions of the jury

charge.”) (quoting Hughes v. State ,

897 S.W.2d 285, 296 (Tex. Crim. App. 1994)).

In this case, the application paragraph did not use the broad language

contained in the definitions, but instead sufficiently limited the culpable

mental states to their relevant conduct element. The application paragraphs provided that the

jury was to find appellant guilty if he individually or as a party “intentionally

or knowingly commit[ted] the felony offense of deadly conduct by discharging a

firearm in the direction of a habitation and was reckless as to whether the

habitation was occupied.” Because the

application paragraph sufficiently limited the culpable mental states to the

relevant conduct element, we conclude that the charge as a whole properly

focused the jury on the applicable conduct elements.

Even if the culpable mental states

had not been properly limited to their relevant conduct element in the

application paragraph, we conclude appellant could still not show he suffered

egregious harm. The record shows

overwhelming probative evidence of appellant’s guilt. It further shows that the State’s closing

argument outlined the culpable mental states and limited them to their relevant

conduct elements. Appellant did not

present a defense regarding mental culpability, and the only defensive tactic

employed by appellant was to question the evidence against him in his closing

argument. After reviewing the record, we

conclude that appellant cannot show the trial court’s jury charge deprived him

of a fair and impartial trial. See, e.g. , Nations v. State , 894 S.W.2d 480, 490 (Tex. App.—Austin 1995) (holding

error in providing definitions on applicable culpable mental states does not

result in egregious harm when culpable mental state was not contested issue at

trial), vacated on other grounds , 930

S.W.2d 98 (Tex. Crim. App. 1996); Manning

v. State , 803 S.W.2d 881, 883 (Tex. App.—Fort Worth 1991, no pet.) (holding

same). We hold that the trial court’s

error was harmless.

We

overrule appellant’s second issue.

CONCLUSION

We affirm the judgment of

the trial court.

Sherry

Radack

Chief

Justice

Panel consists

of Chief Justice Radack and Justices Massengale and Brown.

Do not

publish. Tex. R. App. P. 47.2( b).