

Opinion filed February 23,
2012
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-10-00112-CR 
                                                    __________
 
                                   ROBERTO
ALCALA, Appellant
 
                                                             V.
 
                                      STATE
OF TEXAS, Appellee

 
                                   On
Appeal from the 104th District Court
 
                                                            Taylor
County, Texas
 
                                                    Trial
Court Cause No. 17192B
 

 
                                            M E M O R A N
D U M   O P I N I O N
 
            The
jury convicted Roberto Alcala, appellant, of the offense of capital murder, and
the trial court assessed his punishment at confinement for life without parole.[1]
 We affirm.
            Appellant
presents two points of error challenging the legal and factual sufficiency of
the evidence to support his conviction for capital murder.  We review a challenge to the sufficiency of the evidence,
regardless of whether it is denominated as a legal or a factual sufficiency
claim, under the standard of review set forth in Jackson v. Virginia,
443 U.S. 307 (1979).  Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland
2010, pet. ref’d).  Under the Jackson standard, we examine all of
the evidence in the light most favorable to the verdict and determine whether,
based on that evidence and any reasonable inferences from it, any rational
trier of fact could have found the essential elements of the offense beyond a
reasonable doubt.  Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010).  The jury, as the trier of fact, was the sole judge of
the credibility of the witnesses and of the weight to be given to their
testimony.  Tex. Code Crim. Proc. Ann.
art. 36.13 (West 2007), art. 38.04 (West 1979).  As such, the jury was free to
believe or disbelieve all or any part of any witness’s testimony.  Sharp v.
State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  
Appellant was charged with and convicted of capital murder
for intentionally causing the death of Jessie Jeffrey Villarreal by shooting
him in the head with a deadly weapon while in the course of robbing him.  Appellant
argues that the evidence is insufficient to prove that the murder occurred
during the course of a robbery.  Appellant’s contention is that he is guilty of
murder, not capital murder, because the “theft [was] an afterthought.”
The record shows that appellant attended a quinceañera on
the evening of November 29, 2008, and got “drunk.”  After the quinceañera was
over, appellant asked his aunt for a ride home because the person he came with
had already left.  Appellant’s aunt had no room in her vehicle for appellant, so
she arranged for appellant to ride with Villarreal because she did not want
appellant to have to walk home.  Appellant’s aunt testified that they left at
approximately 1:00 a.m.
At 1:14 a.m., police were dispatched to a shooting at a
7-Eleven convenience store.  When they arrived, they found Villarreal lying on
the ground in a large pool of blood outside the front door of the store.  Villarreal
had been shot twice and died from a gunshot wound that entered his right cheek
and exited through the left side of his neck.  There was also a trail of blood
from the parking lot to the front door.  The front of the store had been shot
three or four times, and there was blood smeared on the front door.  At the
time of the shooting, the store was closed, but a clerk was still in the store
stocking the cooler.  The clerk saw a small, red car pull up and then heard a popping
noise and a loud noise against the front door.  When the clerk got to the front
door, he saw a young man up against the door, bleeding.  He called 9-1-1,
unlocked the door, and attempted to help the young man.
A copy of the tape from the store’s security camera was
admitted into evidence.  It shows a car pulling up, the driver (Villarreal)
getting out and walking to the front door of the store, the passenger
(appellant) following Villarreal out through the driver’s car door up to the
front door of the store, the passenger grabbing something from the driver, the
passenger returning to the driver’s seat of the car, the passenger firing shots
toward the driver and the store, and the passenger driving away in the car.
Villarreal’s car was located by police later that morning. 
It had been damaged and abandoned in the middle of a street.  The right front
tire was shredded.  There was blood on the driver’s seat of the car and on the
driver’s floor mat.  Five shell casings were found in the car, and one was
found outside the car.
Ian Gray, who lived near where the car had been abandoned,
testified that his wife woke him up at 1:30 a.m. on November 30, 2008,
screaming that somebody was on their front porch.  Gray went out to investigate
and observed an intoxicated man that “seemed to be out of it.”  Gray identified
the man in court as appellant.  Gray offered his assistance to get appellant
back on his way.  Appellant told Gray that he needed some gas.  Gray took
appellant to a convenience store to get gas and brought him back.  The car
still would not start, so Gray gave appellant a ride to appellant’s brother’s
house.  Appellant’s brother testified that appellant showed up at his house at
about 2:00 or 3:00 in the morning, that appellant was drunk, and that appellant
said he “f----d up.”
Appellant was arrested later that day at his girlfriend’s
residence.  At that time, police retrieved the jeans and the jacket that
appellant had been wearing and the firearm that had been used to shoot
Villarreal.  Testing showed that Villarreal’s blood was on appellant’s jeans
and jacket.
After his arrest, appellant waived his rights and spoke to
police about the offense.  The interview was recorded, and a copy of the recording
was admitted into evidence.  Appellant testified at trial and admitted shooting
Villarreal.  Appellant testified similarly to other witnesses about the
quinceañera, about not being able to get a ride home from his aunt, and about
getting a ride home from Villarreal.  Appellant explained that he passed out in
Villarreal’s car and that, when he woke up, his zipper was pulled down, his
private was pulled out, and Villarreal was “sucking [appellant’s] d--k.”  Appellant
shoved Villarreal away and began cussing him out.  Villarreal put the car in
motion.  Appellant was angry and “lost it.”  Appellant first told Villarreal to
pull over so appellant could get out; then appellant told Villarreal to pull
over and get out. Villarreal must have looked up and seen appellant’s pistol.  Villarreal
pulled into a 7-Eleven.   Appellant shot Villarreal as he was getting out of
the car.  Appellant chased Villarreal up to the store and shot him again.  Appellant
returned to the car and left in Villarreal’s car.  Appellant testified that he
did not intend to steal the car but was just trying to get home.  Appellant
admitted, however, that he “[p]robably was” pointing the gun at Villarreal when
he told Villarreal to get out of the car.
Tests performed in conjunction with the autopsy showed that
Villarreal was intoxicated at the time of his death.  Villarreal’s sister
confirmed at trial that Villarreal “was a homosexual.”
To prove appellant committed capital murder as charged in
this case, the State was required to show that appellant intentionally caused Villarreal’s
death while in the course of committing or attempting to commit robbery.  See
Tex. Penal Code Ann. §
19.03(a)(2) (West Supp. 2011); Conner v. State, 67 S.W.3d 192, 197 (Tex.
Crim. App. 2001).  For murder to qualify as capital murder under Section
19.03(a)(2), the killer’s intent to rob must be formed before or at the time of
the murder.  Conner, 67 S.W.3d at 197.  Proof of robbery committed as an
afterthought and unrelated to a murder is not sufficient evidence of capital
murder.  Id.; Moody v. State, 827 S.W.2d 875, 892 (Tex. Crim.
App. 1992).  If there is evidence from which the jury could rationally conclude
beyond a reasonable doubt that the defendant formed the intent to obtain or
maintain control of the victim’s property either before or during the
commission of the murder, then the State has proven that the murder occurred in
the course of the robbery.  Conner, 67 S.W.3d at 197.  The jury may
infer the requisite intent from the defendant’s conduct.  Id.  
While
appellant may not have had the intent to rob Villarreal when he got in
Villarreal’s car, we hold that a rational jury could have found that appellant
formed the requisite intent to take Villarreal’s car before or during the
commission of the murder and that taking the car was not an afterthought. 
There was evidence that appellant pointed his gun at Villarreal and ordered
Villarreal to get out of the car.  From this conduct and the subsequent actual
taking of the car, the jury could have determined that appellant had formed the
requisite intent to rob Villarreal when he ordered Villarreal out of the car at
gunpoint.  Appellant subsequently shot Villarreal, followed him to the store,
shot him again, returned to the car, fired more shots, and left in Villarreal’s
car.  The evidence is sufficient to support appellant’s conviction for capital
murder.  We overrule appellant’s points of error.
            The
judgment of the trial court is affirmed.
 
 
                                                                                                JIM
R. WRIGHT
                                                                                                CHIEF
JUSTICE
 
February 23,
2012
Do not publish. 
See Tex. R. App. P.
47.2(b). 
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




[1]See
Tex. Penal Code Ann. § 12.31
(West 2011). 


