                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

  ROBERT JEFFERY LILLER,                         §
                                                                 No. 08-16-00309-CR
                      Appellant,                 §
                                                                    Appeal from the
  v.                                             §
                                                                  109th District Court
  THE STATE OF TEXAS,                            §
                                                              of Andrews County, Texas
                      Appellee.                  §
                                                                      (TC# 6568)
                                                 §


                                         OPINION

       Robert Jeffery Liller was found guilty by a jury for the murder of Shane Rivera. Liller

now challenges his conviction on appeal, contending that the evidence supporting the culpable

mental state element of the offense was legally insufficient. Liller also argues that if we should

find the evidence was insufficient to support his conviction for murder, we should not reform the

judgment for the lesser-included offenses of manslaughter or criminally negligent homicide, but

should enter a judgment of acquittal instead. We affirm.

                                       BACKGROUND

       At approximately 12:05 a.m. on May 18, 2014, law enforcement in Andrews, Texas

received a 911 call reporting a possible hit-and-run. Upon arriving at the reported scene, one of

the responding deputies, Captain Rusty Stewart, saw the body of a man later identified as Rivera
lying on the highway. Rivera was deceased, and his body appeared to have been crushed by a

motor vehicle. Captain Stewart also noticed tire marks which indicated to him that a vehicle had

“peeled out” of the driveway of a residence. As a result of interviews at the scene, responding

deputies began to search for Liller and his wife, Alicia Norton, who were suspected of being

involved in Rivera’s death. Law enforcement officers obtained arrest warrants for Liller and

Norton, as well as search warrants for their 2006 Lincoln Navigator and their cell phones. The

next day, deputies found the Lincoln Navigator, and saw that there was damage to the vehicle’s

passenger side mirror. Soon thereafter, deputies located and arrested both Liller and Norton.

       In Liller’s post-arrest interview with Captain Stewart and Texas Ranger Lieutenant

Burleigh Locklar, Liller stated that at approximately 11:40 p.m. on May 17, 2014, he and Norton

received threatening text messages from his brother, Bruce Liller (Bruce). At the time these

messages were sent, Bruce was at Rivera’s house, where they and several other people had been

watching a UFC fight and drinking alcohol. These text messages taken from Liller’s cell phone

showed that Bruce accused Norton of being a “snitch” and that Bruce ordered Liller to bring

Norton over to Rivera’s house so that they could kill her. Liller responded to Bruce’s texts,

threatening to shoot him and others. Several other threatening messages were sent between Liller

and his brother, which were later presented by the State at trial.

       Shortly after texting Bruce, Liller and Norton drove to Rivera’s house, where a fight soon

broke out between Liller and Norton on one side, and Bruce, Rivera, and Rivera’s wife on the

other. When Liller and Norton got back into their vehicle, Liller described that Rivera and Bruce

grabbed ahold of the vehicle’s passenger-side mirror, and were attempting to not only break it off,

but to also pull Liller out through the passenger-side window. Norton, who was driving the


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vehicle, sped away. Liller claimed he did not know if the vehicle ran over Rivera. He claimed

Rivera was dragged approximately ten to fifteen feet.1 As he held Rivera, he claimed that Norton

held onto his belt to keep him from being pulled out of the vehicle. Rivera and Bruce, he said,

were trying to pull him out of the window. After Rivera fell, Liller stated that he and Norton left

the scene because he was afraid that Bruce would attempt to harm him. Liller expressed remorse

that Rivera had died, and stated that he had not had any prior conflicts with Rivera. As a result

of his interviews with Liller and Norton, Captain Stewart learned that Liller and Norton did not

file an accident report or contact law enforcement after the incident; instead, they traveled to their

residence and various other locations outside of Andrews, Texas, before they were found and

arrested.

        At trial, the State first called Captain Stewart to testify. In his testimony, Captain Stewart

recounted details about his investigation and his post-arrest interview with Liller, which eventually

led to Liller’s arrest. Through Captain Stewart’s testimony, the State also presented the text

messages sent between Liller and Bruce.

        Next, the State called Brian Cummings to testify. Cummings was present at the Rivera

house the night of the incident. Cummings testified he heard a commotion outside the house and

he ran out to find Liller and Rivera about to fight. Once they started fighting, Cummings tried to

break it up. Liller then got into the passenger seat of a Lincoln Navigator and the vehicle started

to drive away with a woman driving. Cummings testified he ran after the vehicle and saw




1
  According to Captain Stewart, the distance between tire marks and the location of Rivera’s body was 313 feet, or
approximately one hundred yards. Texas Ranger Burleigh Locklar, Jr., also testified he conducted his own
investigation at the scene and when he measured the distance from where the skid marks were seen and the location
of the body, he too confirmed it was 313 feet.

                                                        3
Rivera’s body dragging with his legs flailing as he attempted to get up on the passenger-side step-

rail of the vehicle. Cummings testified he saw arms hanging out of the passenger window,

holding onto Rivera, but he could not tell more specifically whether Rivera was held by his clothes,

his hair, or his arm. Cummings estimated that Rivera was dragged for about one hundred yards.

As the vehicle accelerated, Cummings saw Rivera fall and roll at least two or three times in the

rearview lights. Cummings ran to Rivera and when he came upon him he was unresponsive. He

yelled out to call 911. On cross-examination, when asked specifically, Cummings stated that

when the vehicle first left the driveway, he couldn’t see how Rivera was on the vehicle, whether

he was choosing to hold on or if he was being held.

       In addition, the State also presented testimony from Lieutenant Locklar, the Texas Ranger

who interviewed Liller after his arrest. Lieutenant Locklar testified about his investigation and

the post-arrest interview with Liller. He also testified that Cummings told him that Liller’s arms

were holding onto Rivera outside the Lincoln Navigator, and that Norton was holding onto his belt

to keep Liller from going out the vehicle’s window. The State next called a medical examiner,

who testified that Rivera’s boots had scrape marks consistent with being dragged across a roadway

or concrete, and that in his opinion, Rivera’s cause of death was due to blunt force trauma caused

by being run over by a motor vehicle.

       Finally, the State called Melvin Harris who testified that Liller came to his house at

approximately 3 a.m., a few hours after the incident. Harris stated that Liller told him that he

(Liller) had possibly killed Rivera. He described that he had reached out of the window and

grabbed Rivera’s ponytail, while telling Norton to “go” or “drive.” While he held Rivera by his

ponytail, he dragged him down the highway. Harris told Liller that he should probably turn


                                                 4
himself in to the authorities, to which Liller replied that he needed to “figure it out” before doing

so. Liller left Harris’s house, and then came back approximately four hours later, having still not

turned himself into law enforcement.

       Harris further testified that Liller had been texting his brother Bruce, who was the one that

told Liller that he had killed Rivera. Liller told Harris that he had seen Rivera’s feet dangling as

he was holding him, and that when he let go, he felt a “little bump” as the vehicle was traveling,

and that he and Norton did not pull over and stop to see what had happened. Harris testified that

he was under the impression that Liller came straight to his house after the incident. On cross-

examination, Harris testified that Liller told him that he could not see how he and Norton could

have run over Rivera.

       Both parties rested after Harris’s testimony. The jury was charged on the affirmative

defense of self-defense. The jury found Liller guilty of murder and sentenced him to twenty-five

years’ incarceration. This appeal follows.

                                          DISCUSSION

       In his first issue, Liller argues that the evidence was legally insufficient to support his

conviction for murder. Liller contends that the evidence was insufficient to support the culpable

mental state element of the offense of murder, i.e., whether he intentionally or knowingly caused

Rivera’s death.    In his second and third issues, Liller argues that, should we find legally

insufficient evidence to support his conviction for murder, we should not reform the judgment to

reflect a conviction for the lesser-included offenses of manslaughter or criminally negligent

homicide, because he argues, there is also insufficient evidence to support those lesser-included

offenses.


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                                       Standard of Review

       In a legal sufficiency challenge, we determine whether, viewing all evidence in the light

most favorable to the jury’s verdict, any rational jury could have found the essential elements of

the charged offense beyond a reasonable doubt. Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim.

App. 2013) (citing Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979)). Evidence may be legally insufficient when the record “contains either no evidence of an

essential element, merely a modicum of evidence of one element, or if it conclusively establishes

a reasonable doubt.” Id. (citing Jackson, 443 U.S. at 320, 99 S.Ct. at 2789). We may not re-

weigh evidence or substitute our judgment for that of the fact finder. Williams v. State, 235

S.W.3d 742, 750 (Tex. Crim. App. 2007). Further, we presume that the jury resolved any

conflicting inferences from the evidence in favor of the verdict, and we defer to that determination

because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the

weight to be given to their testimony. Merritt v. State, 368 S.W.3d 516, 525–26 (Tex. Crim. App.

2012); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Finally, in determining the

legal sufficiency of the evidence to show a defendant’s culpable mental state, and when faced with

a record that supports conflicting inferences, we “‘must presume—even if it does not affirmatively

appear in the record—that the trier of fact resolved any such conflict in favor of the prosecution,

and [we] must defer to that resolution.’” Cole v. State, 46 S.W.3d 427, 431 (Tex. App.—Fort

Worth 2001, pet. ref’d) (quoting Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991)

(en banc)).

                                             Analysis

       The State’s indictment alleged that Liller “intentionally and knowingly cause[d] the death


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of an individual, namely, Shane Rivera[.]” In his brief, Liller cites TEX. PENAL CODE ANN. §

19.02(b)(2) (West 2011), which provides for an alternate method for establishing murder. Under

Section 19.02(b)(2), the elements of murder are satisfied when (1) a person (2) intending to cause

serious bodily injury (3) commits an act clearly dangerous to human life, and (4) that act causes

the death of an individual. Here, Liller was charged with “intentionally and knowingly caus[ing]

the death of an individual, namely, Shane Rivera,” and the jury charge contained identical

language. Since this language tracks the murder statute under Section 19.02(b)(1), we address

the issue under that provision instead of Section 19.02(b)(2). See Vasquez v. State, No. 08-07-

00247-CR, 2010 WL 819188, at *3 (Tex. App.—El Paso Mar. 10, 2010, no pet.) (not designated

for publication) (analyzing a sufficiency challenge under the particular subsection of Section

19.02(b)(2) which the defendant was indicted under and the jury was charged with).

         On appeal, Liller challenges the legal sufficiency of the evidence supporting the culpable

mental state element of the offense, i.e., whether he intentionally or knowingly caused Rivera’s

death. For the purposes of the offense of murder, a person acts intentionally, or with intent, with

respect to the nature of his conduct or to a result of his conduct when it is his conscious objective

or desire to cause the result.2 TEX. PENAL CODE ANN. § 6.03(a) (West 2011). Likewise, in a

prosecution for murder, a person acts knowingly, or with knowledge, with respect to a result of his




2
  Under TEX. PENAL CODE ANN. § 6.03(a), “intentionally” may be established by two different means, depending on
whether an offense is a “nature of conduct” offense or a “result of conduct” offense. For “nature of conduct” offenses,
the culpable mental state of “intentionally” is established when it is the defendant’s conscious objective or desire to
engage in the conduct. For “result of conduct” offenses, the culpable mental state of “intentionally” is established
when it is the defendant’s conscious objective or desire to cause the result. Murder is a “result of conduct” offense,
which means that the culpable mental state relates to the result of the conduct, i.e., the causing of the death. Schroeder
v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003) (en banc). As such, we apply the “result of conduct” standard
of “intentionally” to this particular offense.

                                                            7
conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b).3

         Viewing the evidence in the light most favorable to the jury’s verdict, we conclude a

rational jury could have found, beyond a reasonable doubt, that Liller intentionally or knowingly

caused Rivera’s death. First, the record shows that Liller sent a series of threatening text messages

to Bruce before traveling to his residence. Specifically, Liller texted Bruce stating, “Who ever in

the fuck keeps creeping around here is getting handled tomorrow I put that on pops grave,” and

“My shit loaded tell them pussy I ain’t scared to let some rounds go.” Bruce responded with an

accusation that Liller’s wife had been “snitchin,” and “shit goin down.” For the jury, these

messages suggested that Liller went to Rivera’s residence to confront Bruce and others.

Moreover, hours after Rivera’s death, Liller taunted Bruce with a text stating, “Who got killed and

who’s laughing now pussy ass bitches.” From this text, the jury could infer from this statement

that Liller intended to cause Rivera’s death. While one of Liller’s later texts stating, “[Rivera]

tried to kill [him] and [his] pregnant girl and fuck around and got beat the fuck up,” could support

Liller’s self-defense theory, the jury was free to reject that theory and presumably did so through

their verdict.

         In addition to text messages, the record also shows that after Liller traveled to Rivera’s

house to confront Bruce and others, he engaged in a physical altercation. Brian Cummings, who

was present at Rivera’s house and observed the events leading up to Rivera’s death, testified that


3
  Likewise, under TEX. PENAL CODE ANN. § 6.03(b), “knowingly” may be established by two different means, again
depending on whether an offense is a “nature of conduct” offense or a “result of conduct” offense. For “nature of
conduct” offenses, the culpable mental state of “knowingly” is established when the defendant is aware of the nature
of his conduct or that the circumstances exist. For “result of conduct” offenses, the culpable mental state of
“knowingly” is established when a person is aware that his conduct is reasonably certain to cause the result. Again,
murder is a “result of conduct” offense, which means that the culpable mental state relates to the result of the conduct,
i.e., the causing of the death. Schroeder, 123 S.W.3d at 400. Therefore, we apply the “result of conduct” standard
of “knowingly” to this particular offense.

                                                           8
he saw “two arms” protruding from the Lincoln Navigator’s passenger-side window holding onto

Rivera before he was dragged for about a hundred yards and crushed by the vehicle. Through his

own statements, Liller did not dispute that he was the person in the passenger seat. Thus, the jury

could reasonably have inferred that Liller was holding Rivera as he was being dragged.

       Other evidence also tended to establish that Liller intentionally or knowingly caused

Rivera’s death. Melvin Harris testified that Liller told him that he had held Rivera by his ponytail

and told Norton to “go” or “drive” while they dragged Rivera down the highway before Rivera

was run over and killed. Again, the jury was free to make the common-sense inference that

Liller’s encouragement to his wife to continue driving meant that he did not intend to safely release

Rivera, but instead intended to cause Rivera to be run over and killed (or knew that he would be

run over and killed) when he released Rivera while the vehicle continued accelerating down the

road. See Ross v. State, 133 S.W.3d 618, 621 (Tex. Crim. App. 2004) (evidence that the defendant

threatened the victim prior to her murder was evidence tending to establish the defendant’s intent).

       In addition, Liller’s flight from the scene served as competent consciousness of guilt

evidence which established that Liller knew what he had done was wrong, and likewise tended to

establish Liller’s guilt. See, e.g., In re J.A.B., 440 S.W.3d 818, 822–23 (Tex. App.—El Paso

2013, no pet.) (evidence of flight is indicative of a consciousness of guilt and is a circumstance

from which an inference of guilt may be drawn) (citing Clay v. State, 240 S.W.3d 895, 905 n.11

(Tex. Crim. App. 2007)). Further, Liller’s failure to go to Rivera’s aid, his failure to report the

incident to law enforcement, the fact that law enforcement apprehended him instead of him

voluntarily surrendering himself to law enforcement, and his statement to Harris that he needed to

“figure it out” before turning himself in, also gave rise to the inference that Liller intentionally or


                                                  9
knowingly killed Rivera and needed time to create a plausible story establishing his innocence.

See, e.g., Bonham v. State, 680 S.W.2d 815, 819–20 (Tex. Crim. App. 1984) (en banc) (evidence

was legally sufficient to establish the defendant’s intent to murder victim where, inter alia, the

defendant ran over the victim with his car, did not go to her aid afterward, fled the scene, did not

voluntarily contact law enforcement about the incident, and was apprehended by law enforcement

eight days after the victim’s death).

       While Liller claimed that Rivera was attempting to pull him out of the vehicle, and the jury

was charged on the affirmative defense of self-defense, the jury was allowed to reject Liller’s

theory and implicitly did so through their verdict. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.

Crim. App. 1991) (en banc) (a jury may accept or reject defendant’s self-defense theory, and a

guilty verdict is an implicit rejection of a defendant’s self-defense theory). In other words, the

jury was free to reject either Liller’s theory that Rivera was attempting to pull him out of the

vehicle and Liller was only protecting himself, or his contention that Rivera fell off the vehicle

without Liller pushing or releasing him. Thus, it was reasonable for the jury to make the inference

that Liller was holding onto Rivera and then intentionally or knowingly caused his death by

throwing or releasing him, causing him to be crushed under the vehicle’s rear tire. See id.

(“[d]efensive evidence which is merely consistent with the physical evidence at the scene of the

alleged offense will not render the State’s evidence insufficient since the credibility determination

of such evidence is solely within the jury’s province and the jury is free to accept or reject the

defensive evidence[, and] [a] jury verdict of guilty is an implicit finding rejecting the defendant’s

self-defense theory”). The reconciliation of conflicts and contradictions in the evidence is within

the province of the jury, and since credible testimony to support the conviction exists in the record


                                                 10
before us, we do not disturb the verdict. See Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim.

App. 1982) (en banc).

       In conclusion, viewing the evidence in the light most favorable to the jury’s verdict (as we

must), we hold that there is sufficient evidence in the record to enable a rational jury to conclude

beyond a reasonable doubt that Liller had the conscious objective or desire to cause Rivera’s death,

by holding and then releasing him, thereby causing Rivera to be run over and killed. Or,

alternatively, that Liller was aware that his conduct was reasonably certain to cause Rivera’s death

given the circumstances. In other words, these facts provide a sufficient basis for the jury to have

reasonably concluded that Liller either intended to cause Rivera’s death by holding and releasing

him, or that he knew that doing so would cause Rivera’s death. Thus, the culpable mental state

for murder was established, and the evidence supporting this element of the offense is legally

sufficient to support Liller’s conviction. See Ross, 133 S.W.3d at 621; Saxton, 804 S.W.2d at

914; Bonham, 680 S.W.2d at 819–20; In re J.A.B., 440 S.W.3d at 822–23. Liller’s first issue is

overruled.

       Because sufficient evidence exists to support Liller’s conviction for murder, we do not

enter a judgment of acquittal or reform his conviction to the lesser-included offenses of

manslaughter or criminally negligent homicide. Liller’s second and third issues are overruled.

                                         CONCLUSION

       The judgment of the trial court is affirmed.


                                              GINA M. PALAFOX, Justice
July 26, 2018

Before McClure, C.J., Rodriguez, and Palafox, JJ.


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(Do Not Publish)




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