Opinion filed July 18, 2013




                                         In The


        Eleventh Court of Appeals
                                      __________
                                  No. 11-12-00158-CR
                                      __________

                      SUNNY J. HIGNOJOS, Appellant

                                           V.

                      THE STATE OF TEXAS, Appellee

                      On Appeal from the 70th District Court
                                   Ector County, Texas
                              Trial Court Cause No. A-37,159


                      MEMORANDUM OPINION
       The jury found Sunny J. Hignojos guilty of evading arrest or detention and
of the attempted capital murder of Ector County Deputy Sheriff David Escudero,
and it assessed his punishment at confinement for two years on the evading arrest
or detention charge and at confinement for forty years on the attempted capital
murder charge. The trial court sentenced Appellant and ordered his sentences to
run consecutively to a forty-year murder sentence in a related case.1
        Appellant appeals his conviction with two issues: (1) the evidence was
insufficient to prove attempted capital murder and (2) the trial court submitted an
erroneous jury charge by including “attempted capital murder” instead of “evading
arrest or detention” in the alternative conspiracy paragraph that followed the
Section 7.02(b) 2 paragraph. We affirm.
                                     I. The Charged Offenses
        Count II of the indictment charged that, on or about January 10, 2010,
Appellant intentionally fled from Deputy Escudero, who was lawfully attempting
to detain Appellant.3 Count I alleged that Appellant intended to commit the capital
murder of Deputy Escudero by shooting at him with a firearm or, as a “party to the
said offense,” by either aiding Eddie Palma, who was with Appellant during the
police chase, when Palma shot at and discharged a firearm at Deputy Escudero or
knowing that Palma had a deadly weapon and intended to use it. 4 Appellant knew
Deputy Escudero was a peace officer acting in the lawful discharge of his official
duties, and Appellant’s actions were more than mere preparation and tended to, but
failed, to effect the commission of the intended offense of capital murder. 5


        1
         Appellant was sentenced to serve his punishment in this case consecutively with the punishments
in two related cases. In Cause No. A-37,160 in the 70th District Court of Ector County, Texas, Appellant
was convicted of aggravated assault with a deadly weapon, and on appeal in this court, Cause No. 11-12-
00358-CR, we have this day affirmed the trial court’s judgment. In Cause No. A-37,164 also in the 70th
District Court of Ector County, Texas, Appellant was convicted of murder, and on appeal in this court,
Cause No. 11-11-00356-CR, we also have on this date affirmed the trial court’s judgment.
        2
            TEX. PENAL CODE ANN. § 7.02(b) (West 2011).
        3
            See TEX. PENAL CODE ANN. § 38.04 (West Supp. 2012).
        4
            See TEX. PENAL CODE ANN. § 19.03 (West Supp. 2012).
        5
            See TEX. PENAL CODE ANN. § 15.01 (West 2011).

                                                   2
                                 II. Trial Evidence
      The evidence shows that several people had gathered at a trailer on West
26th Street in Odessa to drink and to party. The party carried on into the early
morning hours.     Two people at the trailer got into an argument over gang
affiliations. One of them left, but the second individual, Palma, phoned his friends
Rafael “C.J.” Alvarez and Appellant and asked them to come get him. When
Alvarez and Appellant arrived at the trailer, Appellant was armed with a shotgun;
Alvarez had a pistol with him. As Appellant neared the trailer, Snowflake, a pit
bull, bit him on the leg, and he threatened to shoot Snowflake.
      Becky Wakefield, one of the residents of the trailer, argued with Appellant
about his threats to shoot Snowflake. Another person who lived in the trailer,
Jaime Morales Jr., came out of the trailer and told Appellant not to shoot
Snowflake. Morales began to argue with and to fight Alvarez. As they fought,
they fell to the ground, and Appellant turned and shot Morales. Appellant then
shot Wakefield, Snowflake, and three others: Samuel Ortiz, Amy Cardona, and
Ramon Mancha with his shotgun. Appellant, Alvarez, and Palma then fled the
scene in Appellant’s Dodge Ram pickup. Wakefield and Cardona testified that
Appellant shot them and Snowflake as well as Ortiz, Mancha, and Morales and
then fled. Wakefield and Cardona also testified about their injuries.
      Deputy Escudero had responded to a criminal mischief complaint about a
block away from the West 26th trailer location, and he heard gunshots. Deputy
Escudero saw a Dodge Ram pickup leaving the area, and he pursued it. Because of
what he had heard and seen, he followed the pickup, activated his lights and siren,
and began a high-risk felony stop. Deputy Escudero ordered Appellant to turn off
the pickup and exit it, but Appellant did not do either one. Instead, Appellant stuck
his head out the window, backed up his pickup, took off, and accelerated at a high


                                         3
rate of speed. Deputy Escudero gave chase with pursuit speeds between 90 and
110 miles per hour.
      Deputy Escudero testified that someone in the backseat of the pickup shot at
him through the back window of the pickup. The shots came from a shotgun and
pistol. He called for backup and returned fire. Deputy Escudero testified that the
pickup had an electric, sliding rear window that could only be operated by the
driver. A short time later, the pickup hit a telephone guy wire, flipped over on its
side, and crashed near 56th Street and Angus Street; the chase had begun on 16th
Street.
      Appellant and Palma got out of the pickup and ran away. Alvarez, who was
injured during the crash, remained pinned in the right front passenger seat.
Trooper Hunter Lewis responded to the crash site and assisted in searching for
Appellant and Palma. Trooper Lewis located Appellant in a field at 49th Street
and Bryan Street, several blocks from the crashed pickup, and arrested him.
      Police secured the clothing Appellant had on when he was arrested, which
included a red shirt, a black T-shirt, white stocking cap or “do-rag,” dark denim
jeans, socks, and a black hoodie. Police also recovered spent shotgun shells at the
trailer and along the pursuit route and secured Appellant’s shotgun, bandana, cap,
and gloves and both spent and unused shotgun shells from his pickup. Later, a
pistol and a shell casing were recovered at the intersection of 24th and Neptune
after Deputy Diallo Bass reviewed the pursuit video from Deputy Escudero’s
patrol car. The shells and casings recovered matched Appellant’s shotgun and the
pistol recovered by Deputy Bass.
                             III. Discussion and Analysis
      Appellant does not challenge his evading arrest conviction, but he asserts
two issues in connection with the attempted capital murder charge.            First,
Appellant claims that the evidence could not support his conviction for the
                                         4
attempted capital murder of Deputy Escudero. Second, Appellant alleges that the
trial court committed fundamental error when it submitted a jury charge instruction
that Appellant conspired with Palma to commit capital murder.
        A. Issue One: Sufficiency of Evidence
        We apply the sufficiency standard outlined in Jackson and its progeny for
Appellant’s first issue. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Brooks v.
State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010); Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007). We review all of the evidence admitted at trial by
both the State and Appellant in the light most favorable to the jury’s verdict and
decide whether any rational jury could have found each element of the offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319.
        Wakefield and Cardona testified that Appellant shot them and Snowflake as
well as Ortiz, Mancha, and Morales and then fled.           Deputy Escudero saw
Appellant’s pickup leave the West 26th Street area after he heard gunshots, and he
followed the pickup. Deputy Escudero then completed a high-risk felony stop,
based on his observations and a radio call. Deputy Escudero ordered Appellant to
turn off the pickup and exit it. Appellant ignored the commands and continued to
flee.
        During the chase, Appellant opened the electric sliding window to make it
possible for Palma to shoot a shotgun and pistol at Deputy Escudero. Appellant
crashed his pickup near 56th Street and Angus in Odessa, and he and Palma fled.
Appellant was apprehended a short time later by Trooper Lewis—Appellant was
hiding under mesquite trees in a nearby field. Appellant’s clothing matched what
witnesses said he was wearing at the time of the shooting and his subsequent flight.
Police also recovered Appellant’s shotgun, spent shotgun shells, the pistol, and
spent pistol shell casings. The shells and casings matched the guns used by
Appellant and Palma.
                                         5
          Appellant argued that he was not the shooter and that he did not intend to
murder Deputy Escudero. The jury is the arbiter of facts and may believe or
disbelieve any witness. The jurors weighed the evidence, and as rational jurors,
they found beyond a reasonable doubt that Appellant was guilty of attempted
capital murder. We hold that there was sufficient evidence for the jury to do so,
and we overrule Appellant’s first issue.
          B. Issue Two: Erroneous Jury Charge on “Conspiracy”
          Appellate review of claimed jury charge error involves a two-step process.
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). We must first
determine whether error occurred. Middleton v. State, 125 S.W.3d 450, 453 (Tex.
Crim. App. 2003); Hollander v. State, No. 11-10-00337-CR, 2012 WL 3891623
(Tex. App.—Eastland Sept. 6, 2012, pet. granted). If so, we must then evaluate
whether the error requires reversal.       Abdnor, 871 S.W.2d at 731–32.          For a
preserved objection, as we have here, to an actual charge error, we must determine
whether there was some harm or whether the error was calculated to injure
Appellant’s rights and deprive him of a fair and impartial trial. See Almanza v.
State, 686 S.W.2d 157, 160, 171 (Tex. Crim. App. 1985); see also TEX. CODE
CRIM. PROC. ANN. art. 36.19 (West 2006); Cartwright v. State, 833 S.W.2d 134,
136 (Tex. Crim. App. 1992).
          The court’s charge included a Section 7.02(a) instruction. Section 7.02(a)
states:
             (a) A person is criminally responsible for an offense committed by
          the conduct of another if:

                      (1) acting with the kind of culpability required for
                the offense, he causes or aids an innocent or
                nonresponsible person to engage in conduct prohibited by
                the definition of the offense;


                                            6
                    (2) 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; or

                    (3) having a legal duty to prevent commission of
             the offense and acting with intent to promote or assist its
             commission, he fails to make a reasonable effort to
             prevent commission of the offense.

TEX. PENAL CODE ANN. § 7.02(a) (West 2011). The court’s charge also contained
an alternative “parties” charge under Section 7.02(b) of the Texas Penal Code.
Section 7.02(b) provides:
             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.

TEX. PENAL CODE ANN. § 7.02(b) (West 2011).
      A careful review of the jury charge shows that the trial court tracked the
language of Section 7.02(a) and (b) and that it gave the abstract instructions for
conspiracy in the charge. The trial court’s charge did not instruct the jury to
consider whether Appellant was guilty of the separate offense of criminal
conspiracy as set out in Section 15.02. See TEX. PENAL CODE ANN. § 15.02 (West
2011).
      It is well accepted that the law of parties may apply to a case even though
there is no such allegation in the indictment. English v. State, 592 S.W.2d 949
(Tex. Crim. App. 1980); Pitts v. State, 569 S.W.2d 898 (Tex. Crim. App. 1978).
This rule applies not only to the law of parties found in Section 7.02(a)(2) but also
to the law of parties found in Section 7.02(b). Leger v. State, 688 S.W.2d 130


                                          7
(Tex. App.—Beaumont 1985, no pet.). Our examination of the case law shows
that the theory of criminal responsibility in Section 7.02(b) has often been applied
in capital murder cases. Montoya v. State, 810 S.W.2d 160 (Tex. Crim. App.
1989); Wallace v. State, 618 S.W.2d 67 (Tex. Crim. App. 1981); English, 592
S.W.2d at 954; Wilder v. State, 583 S.W.2d 349 (Tex. Crim. App. 1979); Ruiz v.
State, 579 S.W.2d 206 (Tex. Crim. App. 1979); Cienfuegos v. State, 113 S.W.3d
481 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d); Rogers v. State, 662 S.W.2d
13 (Tex. App.—Tyler 1983, pet. ref’d); Koonce v. State, 654 S.W.2d 705 (Tex.
App.—Houston [14th Dist.] 1983, pet. ref’d).
      The trial court instructed the jury that it must find beyond a reasonable doubt
that Appellant either himself evaded arrest and attempted the capital murder of
Deputy Escudero or, as a party to an offense, aided Palma in evading arrest and the
attempted capital murder of Deputy Escudero. The trial court further instructed the
jury that Appellant’s acts must have been more than mere preparation and that he
must have attempted to cause Deputy Escudero’s death or must have aided Palma
in attempting Deputy Escudero’s murder. The next paragraph in the charge was
given in the alternative: the jury must find beyond a reasonable doubt that
Appellant and Palma conspired to evade arrest, and in doing so, Appellant or
Palma attempted the capital murder of Deputy Escudero.
      Appellant argues that “evading arrest or detention” should have replaced
“attempted capital murder,” while the State argued waiver and harmless error. We
disagree with the State that Appellant waived his issue because the record shows
that Appellant objected to the submission of any Section 7.02(b) instruction and
objected to the entire alternative “parties to the offense” paragraph that included
the word conspiracy.    We also disagree with Appellant that a substitution of
language was necessary because the State produced evidence that Appellant
continued to evade arrest after the initial stop by Deputy Escudero and opened the
                                         8
sliding rear window to allow Palma to shoot at Deputy Escudero. Both acts
support an inference of party action not only to evade, but also to attempt to
murder Deputy Escudero. While it may have been preferable for the trial court to
include “evading arrest or detention” in addition to the other language, it was not
error to omit it; alternatively, if it was an error, any such error was harmless in
light of the entire jury charge and the evidence at trial. We overrule Appellant’s
second issue.
                                   IV. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                      MIKE WILLSON
                                                      JUSTICE


July 18, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




                                            9
