      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00476-CR



                                  Raymond Colunga, Appellant

                                                  v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
          NO. 3021787, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Raymond Colunga of capital murder in the course of

committing burglary. See Tex. Pen. Code Ann. § 19.03(a)(2) (West Supp. 2005). The State did not

seek the death penalty, and the court imposed the mandatory life sentence. In three points of error,

appellant challenges the legal and factual sufficiency of the evidence and complains of a definitional

error in the charge. We will overrule these contentions and affirm the conviction.

               David Hernandez testified that the deceased, appellant’s estranged wife Irene

Colunga, was visiting him in his home on the night of August 26, 2002. They were watching

television when, at about 1:00 a.m., appellant burst through the front door carrying a rifle.

Hernandez ran to a bedroom and closed the door. He heard a shot, then another. Hernandez climbed

through a window and ran to a neighbor’s house. They returned to Hernandez’s house and found
Irene Colunga lying dead in the living room. Appellant was arrested in Dallas the next day. Police

found a loaded semiautomatic rifle in his car, and it was identified as the murder weapon.

               The medical examiner testified that the deceased was holding her hand in front of her

face when she was shot. The bullet entered the hand, traveled up the forearm, exited and then

reentered the body, shattering the jaw and larynx and severing the carotid artery before exiting at the

back of the neck. Based on the absence of the gunpowder stippling caused when a firearm is

discharged at close range, the medical examiner was of the opinion that the rifle was at least two feet

away from the deceased’s outstretched hand when fired.

               Appellant testified that he and the deceased were planning to meet at 2:00 a.m., and

that he had spent the earlier part of the evening drinking at bars. He then drove to a friend’s house

to repay a debt and to ask if the friend knew anyone who wanted to purchase his rifle. Leaving the

friend’s house, appellant passed Hernandez’s residence and saw Irene’s car. Angered by her

presence at Hernandez’s house, appellant stopped, armed himself with his rifle, and kicked in

Hernandez’s front door. Appellant testified that when Hernandez ran into the bedroom, he thought

that Hernandez was getting a weapon. Appellant went into another room “to get out of the line of

fire” and chambered a round in the rifle. Irene followed appellant and began to struggle with him.

Appellant tried to shove her away with his foot and, as he did so, she grabbed the end of the rifle.

Appellant said that they both stumbled back into the living room, then the rifle hit his hip and

discharged. Believing that Hernandez was calling the police, appellant fired a second shot into the

bedroom door. Appellant testified that when he saw that Irene had been shot, he panicked and fled.

Appellant said that he did not intend to kill the deceased.




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               Appellant contends that the evidence is legally and factually insufficient to support

the finding that he intentionally killed the deceased. See Tex. Pen. Code Ann. § 19.03(a)(2). The

question presented is whether a rational trier of fact could have found this element of the offense

beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 324 (1979) (legal sufficiency);

Griffin v. State, 614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981) (legal sufficiency); Zuniga v. State,

144 S.W.3d 477, 484 (Tex. Crim. App. 2004) (factual sufficiency). In a legal sufficiency review,

all the evidence is reviewed in the light most favorable to the verdict; it is assumed that the trier of

fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a

manner that supports the verdict. Griffin, 614 S.W.2d at 159 (citing Jackson, 443 U.S. at 318-19).

In a factual sufficiency review, all the evidence is considered equally, including the testimony of

defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321

(Tex. App.—Austin 1992, no pet.). Although due deference still must be accorded the fact finder’s

determinations, particularly those concerning the weight and credibility of the evidence, the

reviewing court may disagree with the result in order to prevent a manifest injustice. Johnson v.

State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). The evidence will be deemed factually insufficient

to sustain the conviction if the proof of guilt is too weak or the contrary evidence is too strong to

support a finding of guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85; see Johnson,

23 S.W.3d at 11.

               A jury may find the specific intent to kill from the circumstances accompanying the

use of a deadly weapon. Cordova v. State, 698 S.W.2d 107, 112 (Tex. Crim. App. 1985). Appellant

armed himself with a rifle and broke into Hernandez’s house, admittedly angry because his wife was

there. According to the expert medical testimony, the deceased was shot from over two feet away

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while in a defensive position. After shooting his wife, appellant fled. This evidence is legally

sufficient to support a finding beyond a reasonable doubt that appellant intended to kill the deceased.

Point of error one is overruled.

               Appellant argues that the evidence is factually insufficient because his testimony that

the shooting was an accident was uncontradicted. This is not accurate. The medical testimony

mentioned above contradicts appellant’s testimony that the rifle went off as he and the deceased

struggled. Although we view the evidence neutrally in a factual sufficiency review, we must give

due deference to the fact finder’s determinations concerning the weight and credibility of the

evidence. Johnson, 23 S.W.3d at 9. The State’s evidence was not too weak, and the defensive

evidence was not too strong, to support the jury’s finding beyond a reasonable doubt that appellant

intentionally killed the deceased. See Zuniga, 144 S.W.3d at 484-85. Point of error two is overruled.

               In his third point of error, appellant contends that the trial court erred in its jury charge

by giving the full statutory definitions of “intentionally” and “knowingly.” See Tex. Pen. Code Ann.

§ 6.03(a), (b) (West 2003). He argues that by failing to define the culpable mental states solely in

terms of the result of the actor’s conduct, the charge allowed the jury to convict him without finding

beyond a reasonable doubt that he intended to kill the deceased. Appellant did not object to the jury

charge.

               The court of criminal appeals has written that capital murder is “a result of conduct

offense which also includes nature of circumstances and/or nature of conduct elements depending

upon the underlying conduct which elevates the intentional murder to capital murder.” Hughes v.

State, 897 S.W.2d 285, 295 (Tex. Crim. App. 1994). In Patrick v. State, 906 S.W.2d 481, 492 (Tex.

Crim. App. 1995), the court held that the offense of capital murder in the course of burglary, the

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offense for which appellant was on trial, contained all three conduct elements. The court said that

the trial court did not err by defining the culpable mental states in terms of the result, nature, and

circumstances of conduct, although it should have limited the additional culpable mental states to

the underlying burglary offense. Id.

                If the trial court erred by defining the culpable mental states as it did, the error did not

cause appellant egregious harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1985). The application paragraph authorized appellant’s conviction for capital murder only if the

jury found that he “intentionally cause[d] the death” of the deceased “by shooting her with a firearm”

while in the course of committing or attempting to commit burglary. Contrary to appellant’s

argument, the application paragraph referred the jury to the appropriate portion of the definitions and

required the jury to find that he intended to cause the deceased’s death. If the trial court’s failure to

more narrowly define the culpable mental states was error, no harm resulted. See Patrick, 906

S.W.2d at 493; Hughes, 897 S.W.2d at 296. Point of error three is overruled.

                The judgment of conviction is affirmed.




                                                 __________________________________________

                                                 David Puryear, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: April 21, 2006

Do Not Publish

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