

 











 
                                                                                         
 
 
 
 
                              NUMBER 13-04-278-CR
 
                         COURT OF APPEALS
 
                     THIRTEENTH
DISTRICT OF TEXAS
 
                         CORPUS
CHRISTI - EDINBURG  
 
MARK RIOS,                                                                                    Appellant,
 
v.
 
THE STATE OF TEXAS,                                                                 Appellee.
 
On appeal from the 36th District
Court of San Patricio County, Texas.
 
                                MEMORANDUM
OPINION 
 
           Before
Chief Justice Valdez and Justices Castillo and Garza
                            Memorandum
Opinion by Justice Garza
 




Angel Medina was shot and killed in a drive-by
shooting on August 6, 2003.  Appellant,
Mark Rios, was indicted for Medina=s murder, along with four other co-defendants, Judas
Tamayo Leal, Christopher Gutierrez, Adrian Mendoza, and Billy Joe
Martinez.  Appellant, Leal, and Gutierrez
were tried jointly, and the jury found them guilty of murder.  Appellant now challenges the legal and
factual sufficiency of the evidence to support his conviction.  As discussed below, we have reviewed the
record and conclude that the evidence is both legally and factually sufficient
to support appellant=s conviction. 

I. Relevant Law 
Section 19.02(b) of the penal code defines the
offense of murder:
A person commits an offense if he:
(1) intentionally or knowingly causes the death of
an individual;  
(2) intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the death of an
individual; or
 
(3) commits or attempts to commit a felony, other
than manslaughter, and in the course of and in furtherance of the commission or
attempt, or in immediate flight from the commission or attempt, he commits or
attempts to commit an act clearly dangerous to human life that causes the death
of an individual.
 
Tex. Penal Code Ann. ' 19.02(b) (Vernon 2002). 




In the case at bar, the jury charge authorized a
conviction under the law of parties, even though the indictment did not
specifically charge appellant under the law of parties.  Appellant now contends that the jury should
not have been given the instruction. 
This contention is not raised as a discrete issue but is made in
appellant=s legal- and factual-sufficiency challenges.  Because we affirm the judgment of the trial
court based on the legal and factual sufficiency of the evidence to establish
appellant=s guilt as a party to the murder (and not as a
principal), we note that the law of parties need not be pled in the
indictment.  Vodochodsky v. State,
158 S.W.3d 502, 509 (Tex. Crim. App. 2005); Marable v. State, 85 S.W.3d
287 (Tex. Crim. App. 2002).  A defendant
may be convicted based on the law of parties as long as the jury is given an
adequate instruction on the law of parties. 
Goff v. State, 931 S.W.2d 537, 544 (Tex. Crim. App. 1996). 
Each party to an offense may be charged with the
commission of the offense.  Tex. Penal Code Ann. ' 7.01(b) (Vernon 2003).  AA 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 responsible, or by both.@  Id. '
7.01(a).  The law of parties thus allows
the State to enlarge a defendant=s criminal responsibility to acts in which he may
not be the principal actor.  Goff,
931 S.W.2d at 544.  The following
provision determines whether a person is criminally responsible for the conduct
of another person:
(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;
 
(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) (Vernon 2003).  As the court of criminal appeals recently
explained, this provision establishes a party=s
responsibility for the conduct of another based on the party=s Alevel of participation in the offense, even if he
was not the proverbial triggerman.@  McIntosh
v. State, 52 S.W.3d 196, 200B01 (Tex. Crim. App. 2001).  In determining whether the defendant
participated as a party, the court may look to 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.  Ransom v. State, 920 S.W.2d
288, 302 (Tex. Crim. App. 1996). 
Circumstantial evidence may be used to prove party status.  Id.
II.  Legal
Sufficiency
When reviewing the legal sufficiency of the
evidence, we view 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 offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319
(1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App.
2003).  We are not fact finders; our role
is that of a due process safeguard, ensuring only the rationality of the trier
of fact=s finding of the essential elements of the offense
beyond a reasonable doubt.  See Moreno
v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).
The evidence adduced by the State at trial
established that Angel Medina was gunned down outside of his house.  Investigators recovered evidence from the
scene that established that at least four different firearms were discharged
during the attack.  Medina died as a
result of a single gun-shot wound to the chest. 
The fatal shot was fired from a 12-gauge shotgun.




Several eyewitnesses testified at trial.  Their uncontradicted testimony established
that the shooting was a drive-by shooting involving two cars and several
gunmen.  The cars were identified as a
late model Monte Carlo and a four-door Mazda. 
These cars were seen driving past Medina=s
house several times before the shooting. 
At least five witnesses saw appellant riding in the Mazda immediately
before the shooting.  One witness
observed gunfire flashes emanating from the cars as they drove past Medina=s residence. 
The flashes were seen coming from the backseat of the Monte Carlo and
from the front and rear seats of the Mazda. 
Another witness saw appellant and another man, Christopher Gutierrez,
fire handguns in the direction of Medina=s house from within the Mazda.
Appellant argues that the evidence is legally
insufficient because the State did not prove who fired the fatal shot from the
12-gauge shotgun.  We disagree.  A conviction can be had even if there is no
evidence that the defendant fired the fatal shot.  Cain v. State, 976 S.W.2d 228, 234
(Tex. App.CSan Antonio 1998, no pet.) (recognizing that, under
the law of parties, the fortuity that only a bullet from a different shooter
struck the victim will not absolve the defendant of criminal responsibility for
murder).  We believe that, in
circumstances such as those presented by this case, it is unnecessary for the
State to prove who fired the fatal shot in order to convict a defendant of
murder under the law of parties.  See
id.  




The essential inquiry is whether the State
established beyond a reasonable doubt that appellant acted with intent to
promote or assist the commission of the murder. 
See Tex. Penal Code Ann. ' 7.02(a)(2). 
As the court of criminal appeals has explained, if the defendant is not
the Aprimary actor,@ the State must prove conduct constituting an
offense plus an act by the defendant done with the intent to promote or assist
such conduct.  Beier v. State, 687
S.W.2d 2, 3 (Tex. Crim. App. 1985).  There
is no question that Medina was murdered during the drive-by shooting.  Although appellant apparently did not fire
the fatal shot, he committed an act that assisted in the murder, as he fired a
handgun during the drive-by shooting which killed Medina.  From this circumstantial evidence, the jury
could have concluded that appellant intended to promote or assist the
commission of Medina=s murder.  See
Cain, 976 S.W.2d at 234. 
Appellant=s legal-sufficiency challenge is therefore
overruled.
III.  Factual
Sufficiency 
In a factual sufficiency review, the evidence is
viewed in a neutral light, favoring neither party.  See Clewis v. State, 922 S.W.2d 126,
134 (Tex. Crim. App. 1996).  In this
neutral light, we determine whether Athe proof of guilt is so obviously weak as to
undermine confidence in the jury's determination, or the proof of guilt,
although adequate if taken alone, is greatly outweighed by contrary proof.@  See
Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  A clearly wrong and unjust verdict occurs
where the jury=s finding Ashocks the conscience,@ or Aclearly demonstrates bias.@  Santellan
v. State, 939 S.W.2d 155, 164B65 (Tex. Crim. App. 1997).  We are authorized to disagree with the fact
finder=s verdict even if probative evidence exists that
supports the verdict.  Id. at 164;
see also Johnson, 23 S.W.3d at 7.
Appellant has not identified any exonerative
evidence that greatly outweighs the proof of guilt.  In fact, appellant has failed to identify any
evidence that is contrary to the proof of guilt.  Instead, appellant=s factual-sufficiency challenge appears to rest on
the contention that, when viewed in a neutral light, the proof of guilt is so
obviously weak as to undermine confidence in the jury=s determination. 





In our discussion of the legal sufficiency of the
evidence, we documented the evidence supporting the jury=s finding of appellant=s
guilt under the law of parties.  Although
we now consider the evidence in a neutral light, we do not find that it is so
obviously weak as to undermine confidence in the jury=s determination. 
We believe it is sufficient to find appellant guilty beyond a reasonable
doubt.  Accordingly, appellant=s factual-sufficiency challenge is overruled.  
IV. 
Conclusion
The judgment of the trial court is affirmed.
 
 
_______________________
DORI CONTRERAS GARZA,
Justice
 
Do not publish.                                              
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and 
filed this the 6th day of October, 2005.

