Opinion issued August 26, 2014




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                                NO. 01-13-00141-CR
                             ———————————
                  ROXMAN CHRISTIAN CASTRO, Appellant
                                          V.
                        THE STATE OF TEXAS, Appellee


                     On Appeal from the 351st District Court
                             Harris County, Texas
                         Trial Court Case No. 1214826


                           MEMORANDUM OPINION

      A jury found appellant, Roxman Christian Castro, guilty of the offense of

capital murder 1 and assessed his punishment at confinement for life. In two issues,

appellant contends that the trial court erred in not instructing the jury on the lesser-


1
      See TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon Supp. 2013).
included offense of felony murder and limiting his argument regarding “the

inherent weakness of eyewitness identification testimony.”

      We affirm.

                                  Background

      Enrique Dominguez testified that on April 6, 2009, he and the complainant,

Edgar Menjivar, a close friend, went to a bar to play pool and drink beer. At the

bar, a man asked them if they wanted to meet with two prostitutes for a “low

price.” Dominguez and the complainant agreed and, in their separate vehicles,

followed the man to “a cantina,” where two women—one of whom said her name

was “Jackie”—were waiting. Dominguez, the complainant, and the two women

then drove to an apartment, where Dominguez was surprised to see the man who

had set up the meeting with the prostitutes. Once inside a bedroom, Jackie told

Dominguez that she wanted more money; she left the room when he said that he

did not have any more.

      Immediately thereafter, three men came into the bedroom, began to beat

Dominguez with “weapons,” and threw him onto the floor. The assailants then

brought the complainant, who had been beaten in another room, to Dominguez,

tied the two men up, and pushed their heads under the bed. The assailants asked

Dominguez and the complainant repeatedly about a man known as “Grenas,” who

owned an auto body shop and was a “coyote,” i.e., one who smuggles



                                        2
undocumented immigrants from Mexico into the United States for money.

Dominguez explained to the jury that he knew Grenas through the complainant,

and they had twice “h[u]ng out” together at Grenas’s shop. At first, Dominguez

denied knowing Grenas, but the assailants continued to beat him and the

complainant. Dominguez finally admitted to knowing Grenas after the assailants

found a picture of Dominguez’s family and threatened to kill them. Dominguez

and the complainant remained in the bedroom into the next day.

      The assailants forced Dominguez, from his cellular telephone, to call Grenas

and ask if he could see him at his shop. Three of the assailants took Dominguez so

that he could show them the location of Grenas’s shop, and they then returned to

the apartment.   Dominguez explained that more than seven individuals were

involved in his kidnapping and a plan to “steal” undocumented immigrants from

Grenas.

      Dominguez heard the assailants refer to one man as “El Gato.”           The

assailants generally kept their faces partially concealed with the hoods of their

sweatshirts. Appellant, however, showed Dominguez his face and pointed a rifle

to Dominguez’s forehead, stating that, if everything went well at Grenas’s shop,

they would allow Dominguez and the complainant to run; but, if anything went

wrong, he told Dominguez “to take a good look at [appellant’s] face because that

was the last time we were going to see him because we were going to get killed.”



                                        3
      On the night of April 7, 2009, three men and two women drove Dominguez

and the complainant to the business warehouse complex where Grenas’s shop was

located. The assailants then forced Dominguez to knock on the door of Grenas’s

shop, but no one answered. At about the same time, Dominguez heard a car drive

into the parking lot. He then heard one gunshot, and he turned to see appellant

shooting at him and the complainant. Dominguez saw the complainant, who was

standing behind him, get shot and “fall[] to the ground.” Appellant also shot

Dominguez, and the two men fell to the ground together. Dominguez noted that he

was shot nine times.

      Jose Rene Martinez testified that at 11:40 p.m. on April 7, 2009, he drove

his red pickup truck into a parking space at the same warehouse complex in which

Grenas’s shop was located, and he saw about eight people in the parking lot.

Before he could get out of his pickup truck, appellant walked up, touched a gun to

the driver’s window, and asked him if he was the “coyote.” Although Martinez

told appellant that he was not the “coyote,” appellant insisted that he was the

“coyote.”   Appellant then pulled Martinez out of his pickup truck and pointed the

gun to his head. When another man hit Martinez on his head with a gun, Martinez

fell to the ground and then heard gunshots. He noted that the man who shot

Dominguez and killed the complainant ordered appellant to shoot Martinez.

Appellant then shot Martinez one time in the back with a handgun. Martinez



                                        4
pretended that he was dead and heard the men drive away. Martinez explained that

a Houston Police Department (“HPD”) sergeant showed him a photographic array

and asked him if he could identify anyone from the shooting. Martinez selected

the photograph of appellant as the man who got him out of his pickup truck and

shot him, explaining that he was only “sixty percent” sure that it was appellant

because he was wearing a hat at the time of the shooting. And Martinez identified

appellant in court as the man who shot him.

      Wendy Cabieles testified that on April 4, 2009, she met appellant, whose

street name is “El Gato,” through his friends known by the street names of

“Pachuco” and “Chino.” On April 6, a man, whose street name was “Francolo,”

his girlfriend, known by the street name “La Flaca,” Pachuco, and his girlfriend,

Maria, were all at Cabieles’s apartment.      Francolo and Pachuco left and, at

midnight, Francolo telephoned Cabieles and asked her to come to a club to meet

two “coyotes,” who wanted to pay for prostitutes. She explained that Francolo

wanted to “steal” the undocumented immigrants from the “coyotes” and promised

to pay her if she helped get information from the two men regarding the location of

the immigrants. Cabieles drove to the club, where she met Dominguez and the

complainant outside before they drove to “a cantina.” She told Dominguez that her

name was “Jacqueline.” Cabieles left the cantina with Dominguez, and another

woman, Maria, left with the complainant. They eventually drove to Cabieles’s



                                        5
apartment, with appellant and a man known as “El Flaca” following them. When

they arrived, Francolo and La Flaca were already there and appellant, Pachuco,

Chino, and El Flaca came in shortly thereafter. The men took the complainant into

the bedroom with Dominguez, and appellant, Pachuco, and El Flaca beat the men,

demanding to know the location of the undocumented immigrants. Dominguez

eventually agreed to show the assailants the location of the immigrants.

Appellant’s brother, Alex, a man named Brian, and a man known as “El Guero”

then arrived to help to plan and “steal” the undocumented immigrants.

      Cabieles further testified that several of the assailants drove Dominguez to

the business warehouse complex so he could show them the location of the

undocumented immigrants. Later that evening, Cabieles drove appellant, Pachuco,

Dominguez, and the complainant back to the same warehouse complex. El Flaca

and Chino drove separately in a van, Brian drove in a car, and Alex drove Maria in

Cabieles’s Ford Expedition so they would have vehicles in which to transport the

undocumented immigrants. Cabieles noted that Francolo and Pachuco had rifles,

appellant had a silver handgun, and Chino had a black handgun.             After the

assailants, Dominguez, and the complainant approached the door of Grenas’s shop,

Cabieles saw a red pickup truck pull into the parking lot. She then heard gunshots

and saw appellant hitting the driver of the red pickup truck with his silver handgun.

Cabieles then drove appellant, La Flaca, and either El Flaca or Brian away from



                                         6
the scene. Cabieles explained that she knew that the men had shot someone

because appellant asked Pachuco why he had shot at someone. Pachuco told him

that if he had not killed them, the men would have killed them instead.

      Harris County Medical Examiner Dr. Kathryn Haden-Pinneri testified that

she performed an autopsy on the complainant’s body and prepared a report with

her findings.   She explained that the complainant had suffered multiple injuries,

including abrasions on his face and head caused by a blunt object, and three

gunshot wounds: one to his left chest, one to the back side of his left arm and into

the chest, and one to his left-upper back. Haden-Pinneri opined that the gunshot

wounds caused the death of the complainant.

                             Lesser-Included Offense

      In his first issue, appellant argues that the trial court erred in denying his

request to instruct the jury on the lesser-included offense of felony murder because

“[t]he evidence here showed that [appellant] expressed surprise that someone was

killed” and “[s]ome evidence exists in the record that would have permitted the

jury to rationally find that [he] was guilty only of felony murder.” The State

argues that the trial court did not err in denying the requested instruction “because

there is no evidence from which a rational jury could find appellant guilty of only

felony murder.”




                                         7
       At the charge conference, appellant requested that the trial court instruct the

jury on the lesser-included offense of felony murder based on the following

testimony from Cabieles:

       [The State]:            And what did you know when you left that night?

       [Cabieles]:             [Appellant] asked Pachuco why he had shot -- he
                               shot at him.

       [The State]:            And what did Pachuco say?

       [Cabieles]:             Because if I wouldn’t have killed them, they would
                               have killed us.

Appellant asserts that this testimony constitutes some evidence that he did not have

the specific intent to kill.

       We employ a two-step process to determine if an instruction on a lesser-

included offense should be given. Rousseau v. State, 855 S.W.2d 666, 672 (Tex.

Crim. App. 1993); see also Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App.

2007). An offense is a lesser-included offense 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 the 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.

                                              8
TEX. CODE CRIM. PROC. ANN. art. 37.09 (Vernon 2006). A defendant is entitled to

a lesser-included offense instruction if proof of the charged offense includes the

proof required to establish the lesser-included offense. Ferrel v. State, 55 S.W.3d

586, 589 (Tex. Crim. App. 2001); Miller v. State, 177 S.W.3d 177, 181 (Tex.

App.—Houston [1st Dist.] 2005, pet. ref’d). If this threshold is met, the second

step then requires that we determine if there is some evidence in the record that

would have permitted the jury to rationally find that if appellant was guilty, he was

guilty only of the lesser-included offense of felony murder. Hall, 225 S.W.3d at

536; Guzman v. State, 188 S.W.3d 185, 188–89 (Tex. Crim. App. 2006); Rousseau,

855 S.W.2d at 673.

      The distinguishing element between felony murder and capital murder is the

culpable mental state of the offender, i.e., the intent to kill. Fuentes v. State, 991

S.W.2d 267, 272 (Tex. Crim. App. 1999); Rousseau, 855 S.W.2d at 673. “Capital

murder requires the existence of an ‘intentional cause of death.’” Rousseau, 855

S.W.2d at 673 (quoting Creel v. State, 754 S.W.2d 205, 211 (Tex. Crim. App.

1988)). In contrast, in felony murder, “‘the culpable mental state for the act of

murder is supplied by the mental state accompanying the underlying . . .

felony . . . .’” Id. (alteration in original) (quoting Rodriguez v. State, 548 S.W.2d

26, 28–29 (Tex. Crim. App. 1977)).        Stated another way, felony murder is an

unintentional murder committed in the course of committing a felony. See TEX.

                                          9
PENAL CODE ANN. § 19.02(b)(3) (Vernon 2011).               Capital murder includes an

intentional murder committed in the course of felony kidnapping. 2               Id. at §

19.03(a)(2) (Vernon Supp. 2013).          Thus, felony murder meets the statutory

definition of a lesser-included offense of capital murder because it differs from the

charged offense of capital murder only in the respect that it requires a lesser

culpable mental state, and the first prong of the test is met. See TEX. CODE CRIM.

PROC. ANN. art. 37.09(3); Fuentes, 991 S.W.2d at 272; Rousseau, 855 S.W.2d at

673.

       In regard to the second step of the test for determining the appropriateness of

an instruction on a lesser-included offense, we must consider all of the evidence

presented at trial. Rousseau, 855 S.W.2d at 673. “Anything more than a scintilla

of evidence is sufficient to entitle a defendant to a lesser charge.” Bignall v. State,


2
       A person commits the offense of “kidnapping” if the person “intentionally or
       knowingly abducts another person.” TEX. PENAL CODE ANN. § 20.03(a) (Vernon
       2011). The term “abduct” means “to restrain a person with the intent to prevent
       his liberation by: (A) secreting or holding him in a place where he is not likely to
       be found; or (B) using or threatening to use deadly force.” Id. § 20.01(2) (Vernon
       2011). Kidnapping becomes a completed offense when (1) a restraint is
       accomplished and (2) there is evidence that the actor had the specific intent to
       prevent liberation by secretion or the use or threatened use of deadly force. Mason
       v. State, 905 S.W.2d 570, 575 (Tex. Crim. App. 1995); Brimage v. State, 918
       S.W.2d 466, 475–76 (Tex. Crim. App. 1994). Here, the State had the burden of
       proving that a restraint was completed and appellant evidenced a specific intent to
       prevent liberation by either secretion or deadly force. See Brimage, 918 S.W.2d at
       475–76. An assailant need not restrain a victim for any certain period of time.
       Sanders v. State, 605 S.W.2d 612, 614 (Tex. Crim. App. 1980). And “[i]ntent
       [may] be inferred from the acts, words, and conduct of the accused.” Dues v.
       State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982).

                                            10
887 S.W.2d 21, 23 (Tex. Crim. App. 1994). Although this threshold showing is

low, “[i]t is not enough that the jury may disbelieve crucial evidence pertaining to

the greater offense. Rather, there must be some evidence directly germane to [the]

lesser-included offense for the factfinder to consider before an instruction on [the]

lesser-included offense is warranted.” Skinner v. State, 956 S.W.2d 532, 543 (Tex.

Crim. App. 1997). Accordingly, the standard may be satisfied if some evidence

refutes or negates other evidence establishing the greater offense or if the evidence

presented is subject to different interpretations. Robertson v. State, 871 S.W.2d

701, 706 (Tex. Crim. App. 1993).

      We note that the jury was charged on the law of parties. 3 Under the law of

parties, a person is “criminally responsible as a party to an offense if the offense is

committed by his own conduct, by the conduct of another for which he is

criminally responsible, or by both.” TEX. PENAL CODE ANN. § 7.01 (Vernon 2011).

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.”   See id. § 7.02(a)(2) (Vernon 2011).         The trial court’s charge


3
      A defendant may be convicted of capital murder under the law of parties. See
      Valle v. State, 109 S.W.3d 500, 503–04 (Tex. Crim. App. 2003); see also
      Whitmire v. State, 183 S.W.3d 522, 526–27 (Tex. App.—Houston [14th Dist.]
      2006, pet. ref’d) (evidence sufficient to support conviction for capital murder
      where defendant should have anticipated murder during armed robbery).

                                          11
authorized the jury to find appellant guilty of capital murder on any of three

theories of capital murder: as a principal, as a party under section 7.01, or as a

party under section 7.02(a)(2).

      The evidence reveals that appellant and a group of individuals kidnapped

and beat Dominguez and the complainant.           During the commission of the

kidnapping, appellant hit Martinez with his gun before shooting him in the back.

The record also reveals that someone fired at least twelve bullets at Dominguez

and the complainant, killing the complainant and seriously wounding Dominguez.

And Dominguez testified that before the shooting, appellant showed his face to

him and the complainant and told them that he would kill them if anything went

wrong at Grenas’s shop. Dominguez also identified appellant as the man who shot

at him and the complainant. Moreover, Cabieles testified that appellant was in the

group of individuals who kidnapped and beat Dominguez and the complainant and

that he had a silver handgun before and after the shooting. And Cabieles saw

appellant hit Martinez with the silver handgun. Also, Martinez identified appellant

from a photographic array, and testified that he was the man who pulled him out of

his truck at gunpoint and shot him in the back.

      Appellant asserts that Cabieles’s testimony that he asked Pachuco “why he

had shot” constitutes some evidence “that indicates that [he] only intended to

commit kidnapping” and the fact that he asked his co-actor “why he had shot,”



                                         12
“indicat[es] that shooting was not part of the plan” and “he did not shoot anyone

himself.” Appellant further asserts that the State did not offer any evidence that he

“pull[ed] the trigger” or “formed the specific intent to kill.” However, the State

offered evidence that appellant first hit Martinez with his gun and then shot him in

the back. And Dominguez testified that appellant was the man who shot him and

the complainant.

      Cabieles’s testimony that appellant asked Pachuco afterward “why he had

shot” does not constitute evidence that he did not intend to kill Martinez at the time

that he shot him in the back or that he did not have the intent to cause the

complainant’s death. The evidence indicates that appellant was in the course of

committing a kidnapping when he shot Martinez and when either appellant or one

of the other kidnappers shot Dominguez nine times and also shot and killed the

complainant. Moreover, there is no requirement in the case of a capital murder

committed in the course of a kidnapping that the intent to cause death be

premeditated or formulated before the actual commission of the kidnapping. See

Rousseau, 855 S.W.2d at 674–75. We conclude that there is no evidence that

would permit a rational jury to find that appellant was guilty only of the lesser-

included offense of felony murder. Accordingly, we hold that the trial court did

not err in denying appellant’s request for a jury instruction on the lesser-included

offense of felony murder.



                                         13
      We overrule appellant’s first issue.

                                       Jury Argument

      In his second issue, appellant argues that he was denied the right to counsel

at trial because the trial court improperly limited his jury argument addressing the

“inherent weakness of eyewitness identification testimony[.]” Appellant asserts

that the United States and Texas Constitutions guarantee him the right “to have his

counsel make that particular argument to the jury.” See U.S. CONST. amend VI;

TEX. CONST. art. I, § 10.

      Appellant’s complaint is based on the following exchange that occurred

during his trial counsel’s argument:

      [Appellant’s Counsel]:            You heard on voir dire the concern
                                        that people expressed about how
                                        many people have been found
                                        innocent who were found guilty and
                                        served long terms in prison. How did
                                        that happen? Well, I think every --

      [The State]:                      I’m going to object. It’s outside the
                                        scope of the evidence.

      THE COURT:                        Sustained.

      [Appellant’s Counsel]:            Well, let me suggest how.

      [The State]:                      I’m going to object to any suggestions
                                        by counsel of things outside the
                                        record.

      THE COURT:                        Sustained.



                                          14
      [Appellant’s Counsel]:           Eyewitness identification. . . . Without
                                       a shred of scientific evidence leads to
                                       --

      [The State]:                     I’m going to object, Your honor. It’s
                                       improper. It’s outside the scope of
                                       the evidence.

      THE COURT:                       Sustained.

      Appellant’s trial counsel went on to argue to the jury at length that there is

no scientific evidence connecting appellant to the crime, the only eyewitness

testimony presented at trial came from an accomplice “purchasing her freedom”

with her testimony, and Martinez had testified that he was only “[sixty] percent

sure” that it was appellant who shot him. Appellant also argues that Dominguez

was not credible because he initially testified that he did not know Grenas, but later

acknowledged that he had Grenas’s telephone number in his cellular telephone and

Grenas sometimes gave him money. Thus, the record reveals that trial counsel was

able to argue that the eyewitness testimony in this case was flawed.

      More importantly, appellant did not challenge, at trial, any limitation on his

closing argument to the jury on any constitutional grounds, state or federal, by

objecting that he has been denied his right to counsel. To preserve error for

appellate review, a party must: (1) make a timely, specific objection; (2) the

objection must be made at the earliest possible opportunity; (3) the complaining

party must obtain an adverse ruling from the trial court; and (4) the issue on appeal



                                         15
must correspond to the objection made at trial. See TEX. R. APP. P. 33.1(a);

Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002) (stating that all but

most fundamental rights may be forfeited if not objected to at trial). This is true

even though the error of which appellant now complains on appeal concerns his

constitutional rights. Saldano, 70 S.W.3d at 889; Briggs v. State, 789 S.W.2d 918,

924 (Tex. Crim. App. 1990). Specifically, appellant made no argument to the trial

court as he presents on appeal that the trial court limited his argument regarding

eyewitness identification as being inherently flawed or that any such limitation on

his argument denied his right to counsel. Nor did appellant preserve the issue with

either an offer of proof or formal bill of exception. See TEX. R. EVID. 103(a)(2);

TEX. R. APP. P. 33.2. Accordingly, we hold that appellant has waived this issue.

      We overrule appellant’s second issue.




                                        16
                                   Conclusion

      We affirm the judgment of the trial court.




                                                Terry Jennings
                                                Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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