                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-15-00134-CR


JACOB GALEN EVERETT                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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           FROM 371ST DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 1363213D

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                        MEMORANDUM OPINION 1

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      Appellant Jacob Galen Everett appeals from his conviction for capital

murder and life sentence.      Because we conclude that the evidence was

sufficient, the conviction was not double-jeopardy barred, and the trial court did

not abuse its discretion in the admission of evidence, we affirm the trial court’s

capital-murder judgment as modified. See Tex. R. App. P. 43.2(b).


      1
       See Tex. R. App. P. 47.4.
                               I. BACKGROUND

      Randy Pacheco was the manager of a shoe store in Arlington. The store

had a security camera monitoring the front customer area but had no camera in

the back stock room. The owner of the store, Douglas Reinwald, trained his

employees to comply with any robber’s demands and to call the police only after

the robber left the store.

      On February 25, 2014, at approximately 12:00 p.m., Everett entered the

store to try on a pair of boots but left without buying them because they were too

expensive. Everett later admitted that he went to the store that day to look for

security cameras because he planned to commit a robbery at the store.          At

1:50 p.m., Officer Brett Worman of the Arlington Police Department was

dispatched to the shoe store after a 9-1-1 caller reported hearing shots fired and

noticing that the front door was locked and the back door was ajar, which was

unusual. Worman entered the store through the back door and saw Pacheco

lying face down in a pool of blood. Pacheco had a single gunshot wound to his

face and had no defensive wounds. He had been shot from more than two feet

away—not at point-blank range. No one else was in the store, the cash register

drawer was open, and there were no signs of a struggle in the store. A crime-

scene investigator found a shell casing from a nine-millimeter gun outside the

store’s back door. Reinwald determined that approximately $200 had been taken

from the store’s cash register and that a pair of boots was missing from the

inventory.


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      The video of that day from the store’s security camera showed a man

armed with a gun and wearing gray sweatpants, a black hooded sweatshirt, a

black ski mask, and gloves approach Pacheco in the store at around 1:48 p.m.

Pacheco handed the man money from the cash register, and the man then

pointed to the boot display on a wall. The man then followed Pacheco into the

back room, carrying the gun behind his back. External security-camera footage

from a nearby business showed that during the ten to fifteen minutes before the

9-1-1 call was made, someone drove and parked a tan Toyota Tacoma truck

behind the shoe store next to a dumpster. The driver later drove off through a

back alley.   The police department released this footage of the truck and

received a tip that identified the owner of a similar truck—Everett.

      Police officers never saw the truck at Everett’s home but traced the

temporary tags on a car in front of his home to a local car dealership. The

officers investigated and discovered that Everett had traded in a tan Toyota

Tacoma three days after Pacheco was killed. On March 11, 2014, Detective

Steve Griesbach went to Everett’s home to ask about his activities on February

25, 2014. In the recorded interview, Everett admitted that he had gone to the

shoe store to try on boots that day. Everett also told Griesbach that he had

traded in his Toyota Tacoma for a Ford Fusion and that he owned a nine-

millimeter gun, which he kept in the console of his car. Griesbach asked for

permission to search Everett’s car and bedroom, but he refused.




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      Griesbach decided to “freeze the scene” 2 and get a search warrant for

Everett’s car and bedroom. The ensuing search pursuant to the warrant resulted

in officers finding a loaded nine-millimeter gun, $150 in cash, and the boots that

were missing from the shoe store’s inventory in Everett’s car.       In Everett’s

bedroom, officers found a black hooded sweatshirt and two backpacks. One

backpack contained a ski mask and gloves that matched those used in the

robbery.    The second backpack contained food, water, knives, and two

envelopes labeled “Plan A” and “Plan B” containing maps for different states.

The shell casing found behind the shoe store the day of the robbery and murder

was later matched to the gun found in Everett’s car. The gun did not have a “hair

trigger,” which would cause the gun to fire with minimal pressure.        In fact,

minimal pressure to pull a trigger—equating to a hair trigger—would be

“something in the ounces . . . or less than a pound.” The gun found in Everett’s

car had a trigger pull of 7.1 to 7.7 pounds.

      A grand jury indicted Everett with capital murder, murder, and aggravated

robbery with a deadly weapon.        See Tex. Penal Code Ann. §§ 19.02(b)(1),

29.03(a)(2) (West 2011), § 19.03(a)(2) (West Supp. 2015). Everett pleaded not

guilty to capital murder and murder, but pleaded guilty to aggravated robbery with




      2
      Griesbach explained that freezing the scene prevented anyone from
removing anything from the areas to be searched.


                                          4
a deadly weapon. 3 Everett testified at trial and admitted that he scouted the

store, looking for security cameras, and returned later with his cocked-and-

loaded gun and wearing a mask, hood, and gloves to rob Pacheco. Everett

wanted to leave the store by the back door and asked Pacheco to let him out and

get him the boots that he had tried on earlier. Everett testified that as he looked

out the back door to see if the alley was clear, Pacheco threw a shoe box at his

chest, causing him to flinch and accidentally fire the gun. Everett was familiar

with the shoe store because he routinely would play pool at a pool hall located

across the parking lot from the shoe store. Indeed, shortly after the robbery and

murder, Everett and a friend went to the pool hall, and his friend testified that

Everett seemed “fine”—he was not “upset,” “excited,” “twitchy,” “nervous,” or

“troubled”—even after they both noticed “all the cops” at the shoe store.

      A jury found Everett guilty of capital murder and aggravated robbery with a

deadly weapon. Because the State did not seek the death penalty, the trial court

discharged the jury and, recognizing that aggravated robbery was a lesser-

included offense of capital murder, sentenced Everett to life imprisonment

without parole for capital murder. See Tex. Code Crim. Proc. Ann. arts. 37.071,

§ 1 (West Supp. 2015); Tex. Penal Code Ann. § 12.31(a) (West Supp. 2015).

But the trial court entered two judgments: one for capital murder, reflecting a

sentence of life confinement, and one for aggravated robbery with a deadly

      3
        There is no indication in the record that Everett’s guilty plea was the result
of a plea-bargain agreement.


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weapon, also reflecting a sentence of life confinement, to run concurrently.

See Tex. Code Crim. Proc. Ann. art. 42.08 (West Supp. 2015); Tex. Penal Code

Ann. § 3.03 (West Supp. 2015).

                     II. SUFFICIENCY OF THE EVIDENCE

      In his first point, Everett argues that the evidence was insufficient to prove

that he had the requisite intent to kill Pacheco—that he acted intentionally.

See Tex. Penal Code Ann. § 19.03(a)(2). 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 engage in the conduct or cause the

result. See id. § 6.03(a) (West 2011).

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). “Intent and knowledge are fact questions for the jury,

and are almost always proven through evidence of the circumstances

surrounding the crime.” Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim.

App. 1999) (Meyers, J., concurring).         Circumstantial evidence of intent—the

person’s acts, words, and conduct—is reviewed with the same scrutiny as other

elements of the offense. See Laster v. State, 275 S.W.3d 512, 519–20, 524

(Tex. Crim. App. 2009). When we are asked to determine the sufficiency of the


                                         6
evidence to show an appellant’s intent and when the record supports conflicting

inferences, we presume that the trier of fact resolved any such conflict in favor of

the prosecution and defer to that resolution. Turro v. State, 867 S.W.2d 43, 47

(Tex. Crim. App. 1993); Stobaugh v. State, 421 S.W.3d 787, 842 (Tex. App.—

Fort Worth 2014, pet. ref’d). But reversal based on insufficient evidence, even

evidence of intent, is restricted to those rare instances where the trier of fact did

not act rationally. See Laster, 275 S.W.3d at 517; Triplett v. State, 292 S.W.3d

205, 209–10 (Tex. App.—Amarillo 2009, pet. ref’d).

      The evidence showed that Everett entered the shoe store with the intent to

rob Pacheco. Everett admitted he shot Pacheco with his gun but stated that the

gun accidently fired when Pacheco threw a shoe box at him.             Everett shot

Pacheco in the forehead near his right eye from approximately two or more feet

away. Soon after the robbery and murder, Everett and a friend played pool near

the shoe store and watched the police activity from the window of the pool hall.

The friend noted that Everett acted “[j]ust like regular Jacob.”      After he was

arrested, Everett told his brother’s girlfriend that he shot Pacheco because he

was “scared.” Although Everett testified that he did not intend to shoot Pacheco,

the jury was free to disbelieve Everett’s testimony and conclude that Everett

entered the store not only with the intent to rob Pacheco at gun point but also

with the intent to commit murder. Pacheco’s actions in deliberately casing the

shoe store for security cameras, later entering the store with a mask and a

loaded gun that did not have a hair trigger, shooting Pacheco in the forehead


                                         7
from two or more feet away, and then returning to routinely play pool with a friend

across the parking lot from the shoe store could have led a reasonable and

rational finder of fact to determine that Everett intentionally committed the murder

of Pacheco. See, e.g., Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App.

1991) (finding evidence that defendant was undisputedly present at the scene of

the murder, gun required heavy trigger pressure, and victim was shot from a

distance, sufficient to show intentional killing and refute defendant’s claim gun

fired during struggle for gun); Thompson v. State, 691 S.W.2d 627, 630 (Tex.

Crim. App. 1984) (“A rational trier of fact could have inferred from appellant’s acts

of entering the office carrying a deadly weapon, . . . shooting her at close range,

and then fleeing the scene . . ., that appellant intended to cause the death of the

deceased.”), cert. denied, 474 U.S. 865 (1985); Walker v. State, 135 S.W.2d 992,

993–94 (Tex. Crim. App. 1939) (even though defendant claimed shooting was

accidental, concluding evidence that defendant planned robbery in great detail

and ensured gun to be used would work sufficient to show defendant intentionally

murdered); Carmon v. State, 456 S.W.3d 594, 604–05 (Tex. App.—Houston [1st

Dist.] 2015, pet. ref’d) (holding evidence sufficient to support jury’s finding that

defendant intentionally murdered two victims even though defendant claimed

shootings accidental because jury had power to resolve conflicts in testimony);

Slater v. State, No. 02-11-00368-CR, 2013 WL 2631194, at *5–6 (Tex. App.—

Fort Worth June 13, 2013, pet. ref’d) (mem. op., not designated for publication)

(concluding evidence sufficient to support finding that shooting was intentional


                                         8
because law presumes an intent to kill when gun fired at close range and death

results, even though defendant claimed shooting was accidental); Allgood v.

State, No. 04-11-00358-CR, 2012 WL 3711695, at *5 (Tex. App.—San Antonio

Aug. 29, 2012, pet. ref’d) (mem. op., not designated for publication) (“As for

Allgood’s contention that he shot Gass by accident, that the gun just ‘went off’

when he flinched, a firearms expert testified the trigger on the firearm used to kill

Gass required a relatively heavy pull on the trigger to fire.”); cf. Fernandez v.

State, No. 10-01-121-CR, 2003 WL 131852, at *5 (Tex. App.—Waco Jan. 15,

2003, no pet.) (not designated for publication) (noting that although defendant’s

remorse immediately after the shooting and evidence of struggle between

defendant and victim supported defendant’s claim shooting was accidental and

not intentional, evidence was sufficient to support finding that shooting was

intentional or knowing). We overrule point one.

                            III. DOUBLE JEOPARDY

      In his second point, Everett argues that the State was double-jeopardy

barred from prosecuting him for capital murder because he pleaded guilty to

aggravated robbery with a deadly weapon, a lesser-included offense. See U.S.

Const. amend. V; Tex. Code Crim. Proc. Ann. art. 1.10 (West 2005). A trial

court’s acceptance of a non-negotiated guilty plea to a lesser-included offense

does not bar prosecution for the greater offense. Kham v. State, 689 S.W.2d

324, 326 (Tex. App.—Fort Worth 1985, pet. ref’d); see also Ohio v. Johnson,

467 U.S. 493, 501–02, 104 S. Ct. 2536, 2542 (1984). The State has the right of


                                         9
election and may submit the more serious offense to the jury; thus, a defendant

may not force the State’s election by pleading guilty to a lesser-included offense.

Kham, 689 S.W.2d at 327. Accordingly, the prosecution for capital murder was

not double-jeopardy barred by Everett’s non-negotiated guilty plea to a lesser-

included offense. We overrule point two.

      However, the trial court entered a judgment for both capital murder and its

lesser-included offense—aggravated robbery with a deadly weapon—and

ordered the two life sentences to run concurrently.          Cf. Bigon v. State,

252 S.W.3d 360, 369 (Tex. Crim. App. 2008) (holding double-jeopardy violation

may be addressed for the first time on appeal when the error is clearly apparent

from the face of the record).    In orally pronouncing sentence, the trial judge

expressly stated that she would only sentence Everett on the “greater offense of

capital murder” because “aggravated robbery [was] the lesser[-]included

offense.” See Littrell v. State, 271 S.W.3d 273, 276–79 & n.33 (Tex. Crim. App.

2008); Langs v. State, 183 S.W.3d 680, 685–86 (Tex. Crim. App. 2006). The trial

court’s entry of a judgment regarding aggravated robbery conflicted with the trial

court’s refusal to orally pronounce sentence based on the capital-murder

conviction.   See Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App.

2003) (holding oral pronouncement of sentence controls over conflicting

judgment); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992)

(recognizing court’s authority to reform judgment “to make the record speak the

truth when the matter has been called to its attention by any source”). This


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constitutional error cannot be considered harmless because it contributed to

Everett’s punishment. See Tex. R. App. P. 44.2(a); see also Price v. Georgia,

398 U.S. 323, 331, 90 S. Ct. 1757, 1762 (1970) (concluding double-jeopardy

violation could not be found harmless).

      The appropriate remedy is to set aside the conviction, sentence, and

judgment for the lesser-included offense and retain the conviction, sentence, and

judgment of the greater offense. See Littrell, 271 S.W.3d at 279. We therefore

retain the trial court’s judgment for capital murder—entitled “Case No. 1363213D

Count ONE”—and set aside the trial court’s judgment for aggravated robbery—

entitled “Case No. 1363213D Count THREE.” 4 The judgment for capital murder

is modified to delete the statement that the sentence shall run concurrently with

count three. The judgment is also modified to clearly show that his punishment is

imprisonment for life without parole to conform with the trial court’s oral

pronouncement. See Baker v. State, No. 12-14-00185-CR, 2015 WL 3958107,

at *7 (Tex. App.—Tyler Oct. 14, 2015, pet. ref’d) (mem. op., not designated for

publication); cf. Turner v. State, 443 S.W.3d 128, 129 (Tex. Crim. App. 2014)

(modifying judgment to reform sentence from life without parole to life with the

possibility of parole).



      4
       Even though Everett received a life sentence for aggravated robbery as
well, capital murder is the greater offense because it disqualifies Everett from
parole eligibility. See Tex. Penal Code Ann. § 12.31(a)(2); Ex parte Cavazos,
203 S.W.3d 333, 338–39 (Tex. Crim. App. 2006).


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                         IV. ADMISSION OF EVIDENCE

      In his third, fourth, and fifth points, Everett argues that the trial court

abused its discretion by admitting into evidence, over his rule 403 trial objections,

Griesbach’s recorded interview with Everett, a postmortem photograph of

Pacheco’s face, and the money found in Everett’s car. Tex. R. Evid. 403. We

review a trial court’s decision to admit evidence, as well as its decision regarding

the relative weight of the probative value of the evidence, under an abuse-of-

discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App.

2010), cert. denied, 131 S. Ct. 2966 (2011). A trial court abuses its discretion if

its determination lies outside the zone of reasonable disagreement.               Id.

However, “[t]he rules of evidence favor the admission of relevant evidence and

carry a presumption that relevant evidence is more probative than prejudicial.”

Kirk v. State, 421 S.W.3d 772, 782 (Tex. App.—Fort Worth 2014, pet. ref’d).

      In the recorded interview, Everett admitted that he went to the shoe store

on the day of the robbery and murder to look at black boots, that he owned a

Toyota Tacoma truck that day, that he returned to the area later that same day to

play pool with a friend, and that he owned a nine-millimeter gun that he kept in

his car. Griesbach testified that Everett was calm during the interview, and the

audio of the interview confirmed this testimony.          Everett objected to the

admission of the recording because it was unfairly prejudicial, which the trial

court overruled. The recorded interview tended to rebut Everett’s claim that the

shooting was accidental, was probative of several elements of the charged


                                         12
offenses that would be submitted to the jury, and was not unfairly prejudicial;

thus, the trial court did not abuse its discretion in overruling Everett’s rule 403

objection. See, e.g., Gould v. State, No. 02-12-00202-CR, 2014 WL 4105290, at

*3 (Tex. App.—Fort Worth Aug. 21, 2014, no pet.) (mem. op., not designated for

publication); Rodriguez v. State, No. 14-07-00142-CR, 2008 WL 4007493, at *9

(Tex. App.—Houston [14th Dist.] Sept. 2, 2008, pet. ref’d) (mem. op., not

designated for publication). Further, Everett fails to argue how his substantial

rights were affected by the admission of the recording, even if erroneous, other

than to point out that he was sentenced to life imprisonment. See Tex. R. App.

P. 44.2(b). A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict.    King v. State,

953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Everett does not argue that the

recording had a substantial or injurious effect on the jury’s guilty verdict. We

overrule point three.

      Everett also objected at trial to the admission of a postmortem photograph

of Pacheco’s face depicting the bullet wound to his forehead on the basis of rule

403, which was overruled. Again, Everett does not argue that the admission of

the photograph affected his substantial rights or had an undue influence on the

jury’s guilty verdict. This photograph was not unfairly prejudicial and tended to

rebut Everett’s claim that he accidentally and reflexively shot the gun.

See Ventroy v. State, 917 S.W.2d 419, 422–23 (Tex. App.—San Antonio 1996,

pet. ref’d); cf. Reese v. State, 33 S.W.3d 238, 242 (Tex. Crim. App. 2000)


                                        13
(holding photograph of pregnant murder victim in casket admitted at punishment

unfairly prejudicial and inadmissible because it suggested jury’s sentencing

decision was made on improper, emotional basis and not on basis of other

relevant evidence). The trial court did not abuse its discretion, and we overrule

point four.

      Everett finally contends that the admission of the money found in his car

was an abuse of discretion. Everett objected at trial that the probative value of

the money was outweighed by the danger of unfair prejudice, which the trial court

overruled. The money was found in the car near the gun used to shoot Pacheco

and the boots taken from the shoe store that day; thus, this evidence was

admissible as part of the context of the charged offenses. See Mann v. State,

718 S.W.2d 741, 743–44 (Tex. Crim. App. 1986), cert. denied, 481 U.S. 1007

(1987). The money was probative of issues submitted to the fact finder and was

not unfairly prejudicial; thus, the trial court did not abuse its discretion by

overruling Everett’s rule 403 objection. See Franks v. State, 138 S.W.2d 109,

113–14 (Tex. Crim. App. 1940).       Further, Everett offers no cogent argument

regarding the requisite harm flowing from the admission of the money.         We

overrule Everett’s fifth point.

                                  V. CONCLUSION

      We modify the trial court’s judgment to vacate the conviction and sentence

for aggravated robbery and to reflect only the conviction and sentence for capital

murder. We further modify the trial court’s capital-murder judgment to delete the


                                        14
statement that the capital-murder sentence will run concurrently with the

aggravated-robbery sentence. As modified, we affirm the trial court’s remaining

judgment. See Tex. R. App. P. 43.2(b); Littrell, 271 S.W.3d at 279 & n.33.


                                                  /s/ Lee Gabriel

                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 14, 2016




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