                            NUMBER 13-13-00541-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

GRACIELA CASAS ARJONA,                                                    Appellant,

                                          v.

THE STATE OF TEXAS,                                                         Appellee.


                    On appeal from the 93rd District Court
                         of Hidalgo County, Texas.


                       MEMORANDUM OPINION
             Before Justices Garza, Benavides, and Longoria
              Memorandum Opinion by Justice Benavides

      The State indicted appellant, Graciela Casas Arjona, with two counts of capital

murder related to the death of Reyes Garcia.   See TEX. PENAL CODE ANN. 19.03 (West,

Westlaw through 2015 R.S.). Arjona pleaded not guilty, but a Hidalgo County jury found

her guilty of both counts, and the trial court sentenced her to life imprisonment without
parole.   See id. § 12.31.     On appeal, Arjona asserts by three issues that: (1) the

evidence is legally insufficient to support the verdict and judgment; (2) the trial court

reversibly erred by failing to instruct the jury that a unanimous verdict was required

regarding the alternative paragraphs in count one of the indictment; and (3) Arjona’s trial

counsel was ineffective for failing to request a unanimity instruction in the jury charge.

We affirm.

                                   I.     BACKGROUND

       On June 23, 2010, masked intruders entered Reyes Garcia’s Mission, Texas

home, subdued him, and stole several of his personal firearms. While Garcia lay on the

floor of his home at the mercy of the intruders, the assailants shot him eight times, killing

him.   Also present in the home during the ordeal were: (1) Garcia’s wife, Vanessa; (2)

Garcia and Vanessa’s children; (3) Arjona, who is Vanessa’s sister; and (4) Arjona’s

boyfriend, Roel Cantu. Other than Garcia, however, no one else suffered any injury.

       Mission police investigated the murder by speaking to Cantu, who initially provided

false information to them, but later changed his story and identified Tony Mendez and

Jeffrey “El Dragon” Juarez as the suspects in Garcia’s murder. Using this information,

police obtained cell phone data from Cantu’s, Mendez’s, and Juarez’s respective phones.

Mission Police Lieutenant Jody Tittle testified that the cell phone data records indicated

that Cantu called Mendez prior to the murder and then Mendez called Juarez.           Cantu

and Mendez knew each other from prison and lived together along with Arjona.          Using

the cell phone data, police tracked Juarez’s phone to the Mission area around the time of

the murder. Police later arrested Juarez for Garcia’s murder. Mendez, however, has

yet to be located by police.

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       The police shifted their investigation to Arjona to determine whether she played a

role in Garcia’s murder.       On the day following Garcia’s murder, Arjona provided a short

statement to police, which simply described the events that she observed while at the

Garcia home on the night of the murder. Following Juarez’s arrest, however, Arjona

identified Mendez and Juarez in a police photo lineup. On April 4, 2011, Mission police,

led by Investigator Dina Valdez, again met with Arjona to determine whether she had any

more details regarding Garcia’s murder. Investigator Valdez testified that when she and

the other investigators showed up at Arjona’s home, Arjona “seemed a bit surprised, but

she also seemed like at some point she was expecting us.” After police read Arjona her

Miranda1 rights, Arjona provided a more detailed statement than her first, in which she

stated that Vanessa offered Cantu $10,000 to kill Garcia because Garcia physically

abused Vanessa. In her April 4, 2011, statement, however, Arjona denied any direct

involvement in Garcia’s murder.

       Two days later, police placed Arjona under arrest for Garcia’s murder and obtained

another statement from her.         In that statement, Arjona stated that Vanessa told her that

she wanted Garcia dead because he physically and verbally abused her, and “treated her

like a servant.” Vanessa also told Arjona that “she had had enough” of Garcia and asked

for Arjona’s help to “get rid of” Garcia—whether he is dead, in jail, or “beat up.”     Arjona

admitted that Vanessa told her and Cantu that “she would pay $10,000 . . . to us or to find

someone to kill Reyes.” Arjona then stated that while she and Cantu were living with

Mendez, she and Cantu told Mendez about Vanessa and Garcia, and about all of the



       1   See Miranda v. Arizona, 384 U.S. 436, 444 (1966).

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guns and money that Garcia kept in the house.        Arjona admitted that she “told [Mendez]

that Vanessa was looking for someone to kill her husband [and] that she was willing to

pay for it.” At that point, Mendez told Arjona and Cantu that his cousin, Juarez, was a

“killer” and “had gotten away with a lot of killings.” Mendez then told Arjona and Cantu

that he was going to call Juarez and discuss robbing Garcia.        Juarez eventually arrived

at Mendez’s apartment on June 23, 2010, where Juarez, Mendez, and Cantu discussed

how they would enter Garcia’s home and rob him.          Arjona asserted, however, that she

did not participate in those discussions, but heard everything because she was “in the

kitchen the whole time.” Later that evening, Vanessa invited Arjona and Cantu over to

Garcia’s house to eat soup. According to her statement, “Vanessa knew that we were

going to her house with the intention of robbing her and [Garcia], but she just did not know

when.”      Arjona then described the events that transpired that evening leading up to

Garcia’s murder, but stated that she did not know that the assailants were going to kill

Garcia.

         At trial, Arjona denied or could not remember certain portions of her statements to

police, including those statements which implicated her in the crime. Arjona testified that

she believed that Cantu was involved in Garcia’s murder, but not Vanessa.

         The jury found Arjona guilty on both counts of capital murder. At sentencing, the

State dismissed her conviction under the second count, and the trial court sentenced

Arjona to life imprisonment without parole on the first count.         See id.    This appeal

followed.

                                II.    SUFFICIENCY CHALLENGE

         By her first issue, Arjona asserts that the evidence is insufficient to convict her of

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capital murder.

A.      Standard of Review

        In reviewing sufficiency of evidence to support a conviction, we consider all of the

evidence in the light most favorable to the verdict and determine whether, based on that

evidence and reasonable inferences therefrom, a rational fact finder could have found the

essential elements of the crime beyond a reasonable doubt.           Winfrey v. State, 393

S.W.3d 763, 768 (Tex. Crim. App. 2013); Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim.

App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)); see Brooks v. State,

323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). In viewing the evidence in

the light most favorable to the verdict, we defer to the jury’s credibility and weight

determinations because the jury is the sole judge of the witnesses’ credibility and the

weight to be given to their testimony.   Brooks, 323 S.W.3d at 899. It is unnecessary for

every fact to point directly and independently to the guilt of the accused; it is enough if

the finding of guilt is warranted by the cumulative force of all incriminating evidence.

Winfrey, 393 S.W.3d at 768.

        The elements of the offense are measured as defined by a hypothetically correct

jury charge.   Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).          Such a charge is one that

accurately sets out the law, is authorized by the indictment, does not unnecessarily

increase the State's burden of proof or unnecessarily restrict the State's theories of

liability, and adequately describes the particular offense for which the defendant was tried.

Id.   Under a hypothetically correct jury charge in this case, Arjona is guilty of capital

murder if she intentionally caused Garcia’s death in the course of committing or

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attempting to commit a burglary or robbery.            See TEX. PENAL CODE ANN. 19.03.    A

person commits the offense of robbery if, in the course of committing theft and with intent

to obtain property, he intentionally or knowingly causes bodily injury to another.   See id.

§ 29.02(a) (West, Westlaw through 2015 R.S.).              A person commits the offense of

burglary of a building if, without the effective consent of the owner, the person enters a

habitation with the intent to commit a felony, theft or an assault.    See id. § 30.02(a)(3)

(West, Westlaw through 2015 R.S.).

       The trial court’s charge in this case allowed the jury to convict Arjona under “the

law of parties,” or as a co-conspirator.   See id. § 7.02 (West, Westlaw through 2015

R.S.). Under the law of parties theory of liability, a person is criminally responsible for

an offense committed by the conduct of another if, 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.          Id.    In determining whether the accused

participated as a party, the court may look to events occurring before, during and after

the commission of the offense, and may rely on actions of the defendant which show an

understanding and common design to do the prohibited act.             Ransom v. State, 920

S.W.2d 288, 302 (Tex. Crim. App. 1994). Under the co-conspirator theory of liability, 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.   See TEX. PENAL CODE ANN. § 7.02(b).



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B.      Discussion

        By Arjona’s April 6, 2011 written statement to police, she admitted that Vanessa

told her and Cantu that Vanessa wanted Garcia dead and was willing to pay $10,000 for

it.   Arjona also admitted that she and Cantu lived with Mendez in his Mission apartment,

where she and Cantu “told [Mendez] about Vanessa and [Garcia]” including about the

guns and money that Garcia kept in his house.         Arjona then admitted that she told

Mendez “that Vanessa was looking for someone to kill her husband and that she was

willing to pay for it.” At that point, Mendez reached out to Juarez, who met with Mendez

and Cantu to develop the plan to rob Garcia of his money and guns. Arjona’s statement

also stated that she and Cantu “knew that day that the robbery was going to take place.”

        Viewing this evidence in the light most favorable to the verdict, we conclude that a

rational fact finder could have found Arjona guilty under the law of parties and as a co-

conspirator for capital murder. Without Arjona’s solicitation, encouragement, and aid,

Mendez would not have known about Garcia’s money and gun collection, or that Vanessa

purportedly wanted Garcia dead.     Furthermore, we disagree with Arjona’s argument that

she could not have anticipated Garcia’s murder as a result of the robbery.       Juarez was

a member of a notorious street gang who, Arjona had been told, was a “killer” and had

killed before without being caught by the law.    Finally, although Arjona denied making

some of her statements to police, specifically those implicating her in Garcia’s murder,

we defer to the jury’s credibility and weight determinations given to this testimony because

the jury is the sole judge of the witnesses’ credibility and the weight to be given to their

testimony.    See Brooks, 323 S.W.3d at 899.     Arjona’s first issue is overruled.



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                      III.     UNANIMITY INSTRUCTION IN THE JURY CHARGE

       By her second issue, Arjona argues that the trial court reversibly erred when it

failed to include an instruction requiring a unanimous verdict as to the alternative

paragraphs in count one.

A.     Standard of Review

       Our first duty in analyzing a jury-charge issue is to decide whether error exists.

Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we find error, we then

analyze that error for harm.      Id.   Preservation of charge error does not become an issue

until we assess harm.         Id. (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim.

App. 2003)).

       In assessing harm, we first examine whether the defendant objected to the

erroneous charge.       Id.     As in this case, if the defendant did not object, “then he must

show that the error was ‘fundamental’ and that he suffered ‘egregious harm.’”           Reeves

v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013) (quoting Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985)). The appellant must show “actual, rather than

theoretical, harm.”      Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008).

Some examples of egregious harm include those errors that “affect the very basis of the

case . . . [or] deprive the defendant of a valuable right, or vitally affect a defensive theory.”

Id. (internal quotations and citation omitted).       This particular standard is a “high and

difficult standard which must be borne out by the trial record.”       Reeves, 420 S.W.3d at

816.




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B.     Discussion

       Arjona argues that the trial court failed to provide the jury with a unanimity

instruction as to which theory of liability it found Arjona guilty under—that is, whether

Arjona was guilty of capital murder under the law of parties or as a conspirator. The

Texas Court of Criminal Appeals has specifically addressed Arjona’s argument and has

held that a trial court’s failure to instruct the jury to achieve unanimity with respect to

whether an accused was guilty of capital murder as a principal actor or as a party, or with

respect to any particular statutory alternative by which he might be found liable as a party,

is not error because these theories are not penal provisions that define the offense of

capital murder or identify the elements or gravamen of the offense.        Leza v. State, 351

S.W.3d 344, 357–58 (Tex. Crim. App. 2011) (internal citations omitted). Instead, the

court of criminal appeals likened these theories of liability to “adverbial phrases defining

not the prohibited conduct that comprises capital murder (or any other criminal offense,

for that matter), but conditions by which an accused may be deemed criminally

responsible for the conduct of another that satisfies the elements or gravamen of capital

murder (or any other criminal offense).”       Id. at 357 (emphasis in original).     Stated

another way, they “describe alternative manners by which an accused may be held

accountable for the conduct of another who has committed the constituent elements of a

criminal offense, but they in no way define the offense itself.”   Id.   Because we conclude

that there was no error in the jury charge, we overrule Arjona’s second issue.

                        IV.    INEFFECTIVE ASSISTANCE OF COUNSEL

       By her final issue, Arjona argues that her trial counsel was ineffective by failing to

request a unanimity instruction in the jury charge.

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A.     Standard of Review

       To evaluate a claim of ineffective assistance of counsel, we utilize the two-prong

Strickland test.   See Strickland v. Washington, 466 U.S. 668, 687 (1984).          Under this

test, a defendant must first show that counsel’s performance was deficient—that is, it fell

below an objective standard of reasonableness.        See Thompson v. State, 9 S.W.3d 808,

812 (Tex. Crim. App. 1999). Second, if the defendant shows deficient assistance, she

must affirmatively prove prejudice—that is, it is reasonably probable that but for counsel’s

unprofessional errors, the result of the proceeding would have been different.        Id.

B.     Discussion

       The essential basis of Arjona’s ineffective assistance claim relates to her second

issue regarding her counsel’s failure to request a unanimity instruction in the jury charge.

Because we held that the trial court did not err in failing to including the unanimity

instruction in the charge, see Leza, 351 S.W.3d at 357–58, Arjona’s counsel was not

ineffective for failing to request such an instruction.   As a result, Arjona failed to meet the

first prong of Strickland to show that her counsel’s performance was deficient.        Arjona’s

third issue is overruled.

                                     V.      CONCLUSION

       We affirm the trial court’s judgment.



                                                            GINA M. BENAVIDES,
                                                            Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
1st day of October, 2015.

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