             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. PD-1283-09


                                  PABLO PADILLA, Appellant

                                                  v.

                                    THE STATE OF TEXAS

            ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE THIRTEENTH COURT OF APPEALS
                             NUECES COUNTY

        HERVEY , J., delivered the opinion of the Court in which KELLER , P.J., WOMACK ,
JOHNSON , KEASLER , HOLCOMB, and COCHRAN , JJ., joined. PRICE, J. concurred. MEYERS,
J., did not participate.


                                          OPINION

       A jury convicted appellant of capital murder (murder during the course of a robbery or an

attempted robbery), and, with the State not having sought the death penalty, appellant received the

mandatory sentence of life in prison without the possibility of parole. See § 12.31(a)(2), TEX . PENAL

CODE. The ground upon which we granted review asks, “Did the Court of Appeals fail to follow

Texas jurisprudence in erroneously affirming Petitioner’s conviction because the evidence is legally
                                                                                             Padilla--2

and factually insufficient to support a conviction as a principle [sic] or a party to capital murder?”

See Padilla v. State, No. 13-08-470-CR, slip op. at 7-11 (Tex.App.–Corpus Christi, delivered August

20, 2009) (memorandum opinion not designated for publication) (deciding that the evidence is

legally and factually sufficient to support appellant’s capital-murder conviction). We address only

the legal-sufficiency question and decide that the evidence is legally sufficient to support appellant’s

conviction. See Zuliani v. State, 97 S.W.3d 589, 593 (Tex.Cr.App. 2003) (this Court is without

jurisdiction to review evidence for factual sufficiency in non-death-penalty cases).

        The evidence in this case shows that the murder victim (Victor Morales) sold small quantities

of drugs from his home in Corpus Christi. The victim’s wife (Traci Romero) testified that the victim

did this on the side “besides the roofing work” that he did. Romero did not like the victim’s drug-

dealing activities, and they argued over it. They even separated over it for about two or three

months. They got back together about three months before the offense with the understanding that

the victim “wasn’t going to do anymore of those drug-dealings.” The victim, however, apparently

continued his drug-dealing activities, the extent of which he apparently kept secret from Romero.

The night before the offense, the victim told Romero that a person named Carlos Gonzales owed him

$1,000. This caused Romero and the victim to argue. Romero testified that she had seen Gonzales

at their home about a year before to buy drugs from the victim.

        The next morning, Romero went to work, leaving the victim home alone. When Romero

returned home at about 5:20 p.m. that evening, she found the victim dead lying in a pool of blood

on the floor by the front door. Their bedroom had been ransacked, and jewelry was missing. The

victim’s pit-bull dog was in the back yard. Romero testified that the dog was very protective of the

victim. She also testified that the victim usually kept the dog in the house when he was home alone,
                                                                                               Padilla--3

but that he would put the dog in the back yard when a stranger came to the house.

       The medical evidence shows that the victim was severely beaten about the head and the neck

and that his skull had been fractured.1 The medical examiner testified that the victim’s skull fracture


       1

       The medical examiner described the victim’s injuries:

       The right upper forehead, this upper forehead area on the right, there was a two-inch
       round bruise. The right side of the head, in what’s called the “right parietal area,”
       which is the side on this–right side of the head, there was a quarter-inch scrape or
       abrasion. The right periorbital area was around, the right side of the eye and going
       down to the right check [sic], to the right jaw and to right neck, all that area was
       diffusely reddened.

       The mid front of the nose had a quarter-inch tear or laceration and the bone there at
       the nose was also broke. The right corner of the mouth, there was a half-inch tear at
       that location. The right side of the face at the right cheek had several areas where the
       skin had been scraped. They were ranging from an eighth of an inch to a quarter-
       inch.

       The right lower side of the jaw, down at the lower jaw, had an inch and a half tear.
       The upper lip, would be upper lip, but near where the gum line is, there was a
       half–there was a one-inch laceration, there. And the right upper dentition, the teeth
       at right upper part of the jaw, those were–there was areas where they were broken
       and there was also–they had come loose from their anchorage or where they’re
       attached. The lower lip had two tears, one that was a half-inch, that was toward the
       outside part and then one that was an inch toward, more towards the center part.

       The right side of the neck, this, all this area here, it’s a muscle in that area called the
       “sternocleidomastoid muscle” that was bleeding into that right side of the neck. And
       at the left side of the neck, there is a bone that’s in the neck area, it’s called the
       “hyoid bone,” that bone was also broke on the left side of the neck.

       The left backside of the head behind the left ear had an area where there was a
       quarter-inch scrape, then the mid back of the head, just the mid back, going toward
       the right parietel area, there was a five-inch depressed area where there was multiple
       skull fractures, pretty much like an egg shell that had shattered right there, five-
       inches. Then the scalp overlying that area, there was bleeding at the scalp. When
       you reflect the scalp off the head, there was bleeding of the scalp and that was at the
       right forehead and at the back of the head.
                                                                                             Padilla--4

would have been immediately incapacitating and would have caused death within about fifteen to

thirty minutes. The medical examiner also testified that the injury to the victim’s skull was

consistent with having been caused by a blunt instrument such as a baseball bat or some other tool

and that the injuries to the victim’s neck, nose, mouth, cheeks and jaws were consistent with the

victim having been kicked. The medical examiner also stated that all of the victim’s injuries “could

have been made by a single instrument” and that they “could have all been done by one person.”

The medical examiner further testified that there was “no way of telling how many people were

involved in the infliction of these injuries.”

        Within about a week after the offense, the police discovered that appellant and Gonzales had

been involved in pawning the victim’s jewelry.2 Appellant and Gonzales lived in Mathis, which was

about an hour’s drive from Corpus Christi, where the victim lived. The police arrested appellant and

Gonzales.

        About six months later, appellant provided a videotaped statement to the police in the




        The left and right parietel bones, the left side of the head and the right side of the
        head, there was fractures of both bones. And then the occipital bone, which is the
        back and at the left area, and the left temporal bone, there was also some fracturing
        at that location.

        The base of the skull, which is where the brain rests, the floor of the skull, there was
        fracturing at the–at the floor of the skull toward the front on the right and at the
        middle floor of the skull. The bottom of the brain, or the undersurface of the brain,
        that also had some bruises at the right and left front part of the brain and where
        the–the temporal bone is at the left and right bottom portions of the brain.
        2

       Gonzales’s girlfriend (Roxanne Marez) testified at appellant’s trial that she twice
accompanied appellant and Gonzalez to a pawn shop in San Antonio where appellant pawned some
jewelry. Marez testified that appellant and Gonzalez “avoided” answering her question to them
about where the jewelry came from.
                                                                                               Padilla--5

presence of his attorney and the prosecuting attorney. Appellant stated in this videotaped statement

that Gonzales was one of his “closest friends.”3 Appellant stated that Gonzales had been to the

victim’s home before and that he thought that Gonzales was getting his drugs from the victim.

Appellant also stated that he went with Gonzales once before to the victim’s home, but that he

waited in the car while Gonzales went inside.

       Appellant stated that he and Gonzales were riding around in Gonzales’s mother’s car

smoking marijuana on the day of the victim’s murder. Gonzales was driving the car. For some

reason, which appellant did not explain, Gonzales drove the car from Mathis to the victim’s home

and parked. According to appellant, Gonzales got out of the car and went inside the home while

appellant waited in the car. Shortly thereafter, Gonzales came back to the car and told appellant to

come inside the house. When appellant did so, he saw the victim’s body which, according to

appellant, caused appellant to go into a state of shock. Appellant claimed that he stood by the front

door still in shock while Gonzales ransacked the victim’s home and took money and jewelry.

Appellant claimed that Gonzales told him that he struck the victim in the back of the head with a

tire-checker tool.4 Appellant and Gonzales drove back to Mathis in “complete silence.” Appellant

       3

       Appellant also stated that he and Gonzales were “best friends” and that they were “like
family.”
       4

       Detective Garcia described a tire-checker tool:

       Q. [STATE]: Okay. How does–What is the purpose for this tool when it’s used as
       it’s intended?

       A. [GARCIA]: It’s used by truckers. Trucks and the trailers have tires that are inside,
       where you can see them. And inside, they use to thumb on the tire to determine
       whether it’s got enough air or not. The sound emitted by the device will tell the
       trucker that the tire’s inflated or if it’s flat. And it keeps him from getting dirty, when
                                                                                            Padilla--6

helped Gonzales dispose of evidence at an abandoned caliche pit in Mathis including four or five

pairs of gloves and the tire-checker tool (State’s Exhibit 31), which the police recovered. Appellant

stated that Gonzales gave him some cash and some of the victim’s jewelry. Appellant claimed that

he was afraid of his good friend Gonzales and that he pawned some of the victim’s jewelry for

Gonzales because Gonzales told appellant that he did not have a driver’s license.5 Appellant later

said that both he and Gonzales pawned the victim’s jewelry. Appellant claimed that he did not know

that Gonzales planned to kill the victim when they parked in front of the victim’s home.6

       Appellant claims on discretionary review that the evidence is legally insufficient to show that



       he’s going around checking his truck to make sure it’s fit for the highway.

       Q. Okay. Is it pretty heavy?

       A. Yes, sir. I’d say about eight pounds.
       5

       The State presented evidence that Gonzales did have a driver’s license.
       6

        The jury also heard a jail-recorded telephone conversation between appellant and Gonzales’s
girlfriend (Marez). According to appellant’s attorney during closing jury arguments, appellant
sounded like a “little thug” during this telephone conversation. Appellant’s attorney stated:

       Let’s talk about the other side, the jail recording the phone call, where he sounds like
       a little thug. Gosh. Don’t talk like that. Ah, I speak a certain way, you speak a
       certain way, in various context. When I’m at home with my three-year-old we talk
       about his toesies and his shoesies. And I would not quite be embarrassed, but pretty,
       yeah maybe embarrassed if there was a recording played for you of me talking about
       his poor wittle toesies. That’s linguistics. Come on. You use the language that
       people expect you to. If I go back to West Texas and talk to my family there, it’s
       y’all’s and all kinds of deep Texas stuff.

       This recording that he did, statement, required a different level of formality. And he
       understood that. And he also understands that his friends expect him to speak and
       communicate in a certain way. And if he did it differently, he wouldn’t be in that
       group. He would not be in that group. These are people that he–This is his family.
                                                                                            Padilla--7

he is guilty, either as a principal or as a party, to murdering the victim.7 He further argues that

whomever the evidence shows murdered the victim, the evidence also shows that the robbery was

an afterthought and not related to the victim’s murder.8 Appellant argues:

       In affirming Padilla’s conviction for capital murder, the Court of Appeals summarily
       relies on (1) mere presence (not sufficient alone to support a conviction); (2) “flight”
       in that he left the crime scene with the co-defendant (not sufficient alone to support
       a conviction); (3) splitting the proceeds from the theft and (4) pawning the victim’s
       jewelry after the fact. Obviously, none of these factors relate to a robbery in the
       course of murder or the murder itself; they are completely consistent with Padilla’s
       complicity in a theft that occurred after the murder was completed by Gonzales.

(Citation to Appendix omitted; emphasis in italics in original).

       Under a legal-sufficiency review, the reviewing court must view the evidence in the light

most favorable to the jury’s verdict and then determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443



       7

       The jury was authorized to convict appellant of capital murder either as a principal or as a
party. The parties’ portion of the charge provided:

       Under the law of parties, if you find from the evidence beyond a reasonable doubt
       that on or about the 22nd day February [sic], 2007, in Nueces County, Texas, Carlos
       Gonzales, did then and there intentionally or knowingly cause the death of an
       individual, Victor Morales, by striking Victor Morales with a tire checker tool while
       in the course of committing or attempting to commit Robbery; and that the defendant,
       PABLO PADILLA, then and there knew of the intent, if any, of said Carlos Gonzales
       to cause the death of, Victor Morales, by striking Victor Morales with a tire checker
       tool while in the course of committing or attempting to commit Robbery, and the
       defendant, PABLO PADILLA, acted with intent to promote or assist the commission
       of the offense by Carlos Gonzales by encouraging, directing, aiding, attempting, or
       attempting to aid Carlos Gonzales to commit the offense as alleged herein, then you
       will find the defendant, PABLO PADILLA, guilty of Capital Murder as charged in
       the indictment.
       8

        See Ibanez v. State, 749 S.W.2d 804, 807 (Tex.Cr.App. 1986) (a killing followed by
unrelated taking of property is not capital murder).
                                                                                             Padilla--8

U.S. 307, 319 (1979). This “familiar standard gives full play to the responsibility of the trier of fact

fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.” See id. Faced with a record of historical facts that support

conflicting inferences, the reviewing court “must presume . . . that the trier of fact resolved any such

conflicts in favor of the prosecution, and must defer to that resolution.” See Jackson, 443 U.S. at

326. A “mere modicum” of incriminating evidence cannot “by itself rationally support a conviction

beyond a reasonable doubt.” See Jackson, 443 U.S. at 319.

       We decide that a rational trier of fact could have found beyond a reasonable doubt that

appellant willingly and actively participated in the victim’s murder during the course of a robbery

with his “best friend” Gonzales, who owed the victim $1,000. The evidence shows that these “best

friends” made the approximately one-hour drive from Mathis to the victim’s home in Corpus Christi

where the victim was brutally murdered just minutes after their arrival. The victim’s pit-bull dog

was in the back yard when the victim’s wife returned home from work. She testified that the victim

would put the dog in the back yard when a stranger came over. This is some evidence that at least

one stranger was in the house. And, even though the medical examiner testified that he could not

say how many people attacked the victim, the medical examiner’s testimony does support a finding

that the victim could have been attacked by two people.

       The evidence also shows that money and jewelry were taken from the victim’s home

immediately after the victim was attacked.         See Cooper v. State, 67 S.W.3d 221, 223-24

(Tex.Cr.App. 2002) (theft occurring immediately after a murder will support an inference that the

murder occurred during the course of a robbery). The evidence further shows that appellant helped

Gonzales dispose of evidence, that appellant and Gonzales split up the victim’s money and jewelry,
                                                                                              Padilla--9

and that appellant and Gonzales were involved in pawning the victim’s jewelry. See Hooper v. State,

214 S.W.3d 9, 13 (Tex.Cr.App. 2007) (“In reviewing the sufficiency of the evidence, we should look

at 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.”)

(internal quotes and citation to other authority omitted); see also Wilson v. United States, 162 U.S.

613, 619-20 (1896) (in a prosecution for murder, possession “of the fruits of crime, recently after its

commission, justifies the inference that the possession is guilty possession, and, though only prima

facie evidence of guilt, may be of controlling weight, unless explained by the circumstances or

accounted for in some way consistent with innocence”).

       In addition, a rational trier of fact could have found that appellant was less than truthful about

his involvement in the offense when he made the videotaped statement to the police. A rational trier

of fact could have disbelieved appellant’s claim that his best friend, Gonzales, would take a

completely innocent-bystander witness with him while Gonzales committed a capital murder.9 A

rational trier of fact could also consider such untruthful statements by appellant, in connection with

the other circumstances of the case, as affirmative evidence of appellant’s guilt. See Wright v. West,

505 U.S. 277, 296 (1992) (jury could disbelieve defendant’s “uncorroborated and confused



       9

       The State argued during its closing jury arguments:

       What did [appellant] tell you about his relationship with [Gonzales]? They go into
       each other’s homes without knocking. They go wake each other up from a sound
       sleep and say, “Come on, Dude, let’s roll.” That’s what we know about their
       relationship. If you’re gonna go commit a murder, do you take a witness with you?
       No. You take somebody to watch your back. And who are you gonna take to watch
       your back? [Gonzales] is gonna take somebody like that man, right there. And that’s
       who he did take.
                                                                                               Padilla--10

testimony” and jury “was further entitled to consider whatever it concluded to be perjured testimony

as affirmative evidence of guilt”); Wilson, 162 U.S. at 620-21 (“Nor can there be any question that,

if the jury were satisfied, from the evidence, that false statements in the case were made by

defendant, or on his behalf, at his instigation, they had the right, not only to take such statements into

consideration, in connection with all the other circumstances of the case, in determining whether or

not defendant’s conduct had been satisfactorily explained by him upon the theory of his innocence,

but also to regard false statements in explanation or defense, made or procured to be made, as in

themselves tending to show guilt.”); Dyer v. MacDougall, 201 F.2d 265, 268-69 (2nd Cir. 1952). In

Dyer, 201 F.3d at 268-69, the Court explained:

        It is true that the carriage, behavior, bearing, manner and appearance of a witness–in
        short, his ‘demeanor’–is a part of the evidence. The words used are by no means all
        that we rely on in making up our minds about the truth of a question that arises in our
        ordinary affairs, and it is abundantly settled that a jury is as little confined to them as
        we are. They may, and indeed, they should, take into consideration the whole nexus
        of sense impressions which they get from a witness. This we have again and again
        declared, and have rested our affirmance of findings of fact of a judge, or of a jury,
        on the hypothesis that this part of the evidence may have turned the scale. Moreover,
        such evidence may satisfy the tribunal, not only that the witness’ testimony is not
        true, but that the truth is the opposite of his story; for the denial of one, who has a
        motive to deny, may be uttered with such hesitation, discomfort, arrogance or
        defiance, as to give assurance that he is fabricating, and that, if he is, there is no
        alternative but to assume the truth of what he denies.10


        10

        The State also argues in its brief on discretionary review:

        In the present case, the jury was able to see and hear [appellant] on the recorded
        statement, including his calculating demeanor, and his self-serving and implausible
        attempt to shift the entire blame for the robbery and murder onto Gonzales. The jury
        should similarly be able to infer guilt by recorded demeanor, at least in cases like the
        present one where the defendant is present with one or more others during the
        commission of the crime and all that it [sic] lacking is some indication that he was
        either the primary actor or a participant.
                                                  ***
                                                                                          Padilla--11

       We decide that the jury’s verdict in this case is rationally supported by common sense, logical

references from the circumstantial evidence, and legally sufficient evidence. It was not a verdict

based on a “mere modicum” of incriminating evidence. See Jackson, 443 U.S. at 319.11

       The judgment of the court of appeals is affirmed.



                                                              Hervey, J.



Delivered: October 6, 2010
Publish




       Finally, common sense and reasonable inference [sic] suggest that the circumstances
       themselves are inconsistent with the possibility that [appellant] was simply an
       innocent bystander. The evidence suggests that this was not a spontaneous crime but
       a planned event. The two drove to the victim’s house with no apparent reason other
       than robbery and murder, and one of them took the murder weapon into the victim’s
       house and promptly used it. While the presence of an innocent bystander may be
       plausible when the crime is a spur-of-the-moment or unplanned event, common sense
       suggests that you do not take an unsuspecting friend along to a planned murder, nor
       does that friend get a share of the booty when the murder has been completed.
       11

        We find it unnecessary to address the State’s claim that appellant indirectly confessed by way
of an “adoptive admission” when he stated, during the jail-recorded telephone conversation with
Gonzales’s girlfriend (Marez), that Gonzales “snitch[ed] on him.” The State claims that appellant’s
use of the term “snitch” was an implied admission by appellant of his involvement in the crime.
