2012-08-15
NO. 07-10-0462-CR NO. 07-10-0463-CR
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. OPINION
Following pleas of not guilty, Appellant, David Abran Anaya, was convicted by a jury of murder in cause number 59,854-A and of aggravated assault with a deadly weapon in cause number 59,877-A. Punishment on the murder conviction was assessed at ninety-nine years confinement and a $5,000 fine and on the aggravated assault conviction at forty years confinement. The sentences were ordered to run concurrently.
By a single issue, Appellant questions whether he suffered egregious harm by the failure of the jury charge to limit the culpable mental state for murder to the result of his conduct. Appellant does not raise any issues in his brief challenging his conviction for aggravated assault with a deadly weapon. [1]
We affirm both judgments.
FACTUAL BACKGROUND
In the early morning hours of May 31, 2009, Angelica Alvarez drove her younger brother Eloy, her boyfriend Markous Sifuentez, his younger brother Steven Sifuentez and the victim in this case, Eric Mireles, to an after-hours club.[^2]
According to Angelica, upon entering the club they encountered Appellant, whom she did not know, and he warned them not to cause trouble. She testified that he name-dropped gang affiliation and asserted the club was his. Leaving her brother, she and her passengers left the club to visit a friend's house. At approximately 3:30 a.m., they returned to pick up Eloy.
According to the evidence, Appellant's half-brother, Anthony Escoto, who had been involved in a fight earlier, fired a gun in the club parking lot and was jumped and severely beaten by a group of club patrons. Eloy testified that gunshots caused the patrons to head to their respective cars and scurry from the parking lot before police arrived. Eloy, Angelica and Markous ran to Angelica's car to leave. [^3]
As they attempted to leave, Anthony was leaning against Angelica's car, bleeding from wounds he sustained in the melee. Markous threw him off so they could leave. Angelica was in the driver's seat, Markous was in the front seat, Steven was seated behind Angelica, Eric was sitting in the middle of the back seat and Eloy was seated behind Markous.
After leaving the parking lot they were driving along Amarillo Boulevard. Angelica and several of the occupants of her car testified similarly that Appellant's car pulled up beside her car and one of its occupants shouted at them about "jumping" his brother. They then heard gunshots which resulted in Eric being shot and killed.
Appellant testified during the guilt/innocence phase. According to his version of the events, while he was inside the club, he heard that Anthony was outside fighting and went to intervene. After that initial fight, Appellant went back inside the club until closing time.[^4]
After the club closed, Appellant, his girlfriend and a friend of hers got in his car to leave. He noticed a crowd gather in the parking lot and saw "flashes of a gun in the air." He observed a group "pounding on somebody with their feet" and exited his car to see if Anthony was involved. He found Anthony badly beaten and carried him to his car and placed him in the front seat. He took Anthony's gun and placed it on the console between the seats. Because he was on parole he wanted to leave before police arrived.
He further testified that when he pulled up alongside Angelica's car,[5] the front passenger was making aggressive gestures and someone in the back seat pointed a gun at him through the rear passenger window. According to his testimony, he then shot at Angelica's car to defend himself.
During the investigation, a black toy gun was found under the seat of Angelica's car. Eloy testified the gun was his but claimed he was unaware it was in the car at the time of the shooting. A Special Crimes Unit investigator testified that prints were not recoverable from the toy gun. He also testified it resembled a semi-automatic and that the blue and orange coloring indicating it was a toy had been scratched or sanded off to make it look more like a real weapon.
Markous testified that after they left the club they drove along Amarillo Boulevard. At one point he noticed car lights approaching and observed a red Camaro driven by Appellant pull up beside Angelica's car. Both cars had the windows rolled down.
Appellant accused the occupants of Angelica's car of being the persons who had "jumped" Anthony and threatened that if they jumped his brother, they jump him. He then pointed a gun out the driver's side window and fired at Angelica's car. Eloy testified that Appellant had his left hand on the steering wheel and fired out the driver's window with his right hand. After shots were fired, Eloy realized that Eric had sustained a gunshot wound to his right temple and had fallen onto his lap.
Markous instructed Angelica to take off and they drove to a residence belonging to Eric's cousin, where Eric had been living. They took Eric's body out of the car and placed it on the driveway. They then hid Angelica's car behind the residence to avoid detection in case Appellant had followed them.
Markous banged on the front door of the residence until Eric's cousin answered. She observed the body on her driveway and called 911. Officers were dispatched to the residence to investigate at approximately 4:10 a.m.
After the shooting, Appellant, at Anthony's direction, drove around looking for Anthony's girlfriend. When they found her, Anthony got into her car and left with her. Appellant then drove with his girlfriend to a park where they remained until later that morning. After he drove his girlfriend home, he went home to rest.
An investigation of the shooting led a member of the Special Crimes Unit to Appellant's home. After being questioned about the incident at the club, Appellant denied being there; however, he voluntarily went to the police department to answer questions and he consented to a search of his car.
He was cooperative until he was informed someone had been shot following the incident at the club. He then terminated the interview and requested counsel. The investigator testified there was not enough information to hold Appellant at that time and he was released. Following a positive identification by witnesses, an arrest warrant for Appellant was issued later that afternoon.
Appellant testified he went to his sister's home after leaving the police department and later had her drop him off at a park so he could think. He had a duffle bag packed, which included the gun used in the shooting. He walked to a nearby gas station and asked someone with New Mexico license plates for a ride. He was given a ride to Albuquerque where he exchanged the gun for lodging. He remained there until his arrest on August 4, 2009.
Numerous law enforcement officers testified about the investigation. Special Crimes Unit investigators determined that Angelica's car had two bullet holes in the rear passenger door and the medical examiner testified that Eric died from a gunshot wound to the head from an undetermined range.
After the evidence was presented and both sides rested, the trial court read the charge to the jury. The abstract portion of the charge instructed the jury on the full statutory definitions of the culpable mental states of "intentionally" and "knowingly" as they appear in the Texas Penal Code. When the trial court read the application portion of the charge to the jury, it did not include a culpable mental state.[^6]
Following closing arguments, the State discovered the omission and brought it to the court's attention. The court announced to the jury that a correction needed to be made to the charge and, when corrected, would be delivered "shortly." The application paragraph was corrected and, outside the jury's presence, the trial court announced for the record:
counsel have reviewed the corrected version of the Court's charge, and that will be sent back to the jury at this time and . . . no one has any objection to me providing the corrected charge without bringing the jury back out and reading the charge again. Is that correct?
Both sides agreed.
Following its deliberations, the jury returned an unanimous verdict of guilty in both cause numbers.
[1]: The State limits its arguments to the murder conviction as Appellant is not challenging his conviction in cause number 59,877-A for aggravated assault with a deadly weapon.
[2]: Angelica had graduated from high school the day before and was out celebrating.
[3]: Steven and Eric had remained in the car when they returned to the club to pick up Eloy.
[4]: Anthony had been banned from the club and remained outside.
[5]: The female passenger in Appellant's car testified that Appellant wanted to know who attacked his brother and passed several cars after leaving the club to reach Angelica's car which was easily identifiable because it had "Class of '09" painted on the rear window.