                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-09-00385-CR

FREDERICK VILLA,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                            From the 54th District Court
                             McLennan County, Texas
                            Trial Court No. 2005-1597-C2


                            MEMORANDUM OPINION


          A jury found Frederick Villa guilty of the offense of murder and assessed his

punishment at thirty-five years’ imprisonment. In five issues, Villa appeals. We will

affirm.

          We begin with Villa’s third and fourth issues in which he contends that the

evidence is legally and factually insufficient to support his conviction.

          The court of criminal appeals recently held that there is “no meaningful

distinction between the Jackson v. Virginia legal-sufficiency standard and the Clewis
factual-sufficiency standard” and that “the Jackson v. Virginia legal-sufficiency standard

is the only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense that the State is

required to prove beyond a reasonable doubt. All other cases to the contrary, including

Clewis, are overruled.” Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010).

Accordingly, we will apply the same standard of review to both of Villa’s sufficiency

complaints.

         When reviewing a challenge to the sufficiency of the evidence to establish the

elements of a penal offense, we must determine whether, after viewing all the evidence

in the light most favorable to the verdict, any rational trier of fact could have found the

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

U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to determine if

the finding of the trier of fact is rational by viewing all of the evidence admitted at trial

in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex.

Crim. App. 1992). In doing so, any inconsistencies in the evidence are resolved in favor

of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

         The evidence, viewed in the light most favorable to the verdict, is as follows: At

around 10:20 p.m. on September 13, 2005, Steven Gronowski drove himself and his

cousin, Bobby Rodriguez, to a convenience store in Waco. Upon arrival at the store,

Rodriguez went inside to buy a few things while Gronowski stayed in the car. Villa and

Carlos Garcia then pulled up at the gas pumps in another car and went into the store.

While Rodriguez was paying at the counter, Villa and Garcia whispered to one another

Villa v. State                                                                         Page 2
at the side of the counter. Rodriguez then exited the store. Villa and Garcia followed

him after Villa quickly left $15 on the counter to pay for gas.

         Villa and Garcia confronted Rodriguez outside the passenger side door of

Gronowski’s car. Villa and Garcia began arguing with Rodriguez and then started

fighting with him. Garcia hit Rodriguez first and then Villa began fist-fighting with

him. Garcia pulled out a gun and began hitting Rodriguez with it. While he was

hitting him with the gun, Garcia missed Rodriguez and hit the roof of Gronowski’s car.

The gun slipped out of Garcia’s hand and flew across the parking lot. When Gronowski

saw this, he started to get out of his car, but before he was even able to completely step

out of his car, Garcia retrieved the gun. Garcia put the clip back in the gun, cocked it,

and then pointed the gun at Gronowski and told him not to do anything stupid or he

would kill him. Garcia then ran back to where Rodriguez was.

         In the meantime, Villa and Rodriguez had continued fighting.         Gronowski

testified that Villa also had a gun. Rodriguez hit Villa hard and knocked him back.

Villa then tackled Rodriguez and knocked him to the ground. As Rodriguez was trying

to get up off the ground, Garcia ran over and kicked his elbow out from underneath

him. Rodriguez fell and hit the bumper of the car with the back of his head. Garcia

then swung the gun and hit Rodriguez in the head and a shot rang out. Villa and

Garcia then ran to their car and left. Rodriguez died approximately two days later.

         Dr. Ted Smith, the primary physician who treated Rodriguez, determined that

the cause of Rodriguez’s death was blunt trauma to the brain. Dr. Smith testified that

Rodriguez had a scalp wound that he felt was due to a bullet but that the bullet did not

Villa v. State                                                                      Page 3
actually enter Rodriguez’s skull; rather, it “skied along the outside of the skull through

the scalp.” People who suffer this type of injury are usually not killed. However,

Rodriguez also had a fracture of the skull extending from the top of the skull down

toward both ears. Dr. Smith’s opinion was that the skull fracture was caused by being

struck in the head by a blunt object, not a gunshot. The blunt object could have been a

pistol, or the injuries could have been sustained if Rodriguez’s head bounced off a car

or the sidewalk when he was forced to the ground. However, the trauma to the brain

could not have been sustained solely from a beating with fists because usually the bones

of the hand will break before the skull will break.

         Dr. Lynn Salzberger, the medical examiner who conducted an autopsy on

Rodriguez, testified that Rodriguez’s manner of death was homicide.              Most of

Rodriguez’s injuries were located on his head. The main injury was an injury on the top

of his head that involved a skull fracture and some swelling, bruising, and tearing of the

brain immediately beneath the skull fracture. She was uncertain whether the injury was

a blunt force injury or a gunshot wound injury. She explained that all of the landmarks

that she typically looks at as a forensic pathologist to determine whether the injury is a

blunt force injury or a gunshot wound injury were gone because the surgeons had

worked on Rodriguez and there was also some healing that had occurred.

         The court’s charge included an instruction on the law of parties and the

application paragraph applied the law of parties to the facts of this case.

         A person is guilty of murder, as charged in this case, if he (1) intentionally or

knowingly causes the death of an individual, or (2) intends to cause serious bodily

Villa v. State                                                                      Page 4
injury and commits an act clearly dangerous to human life that causes the death of an

individual.      TEX. PENAL CODE ANN. § 19.02(b)(1), (2) (Vernon 2003).       A person is

criminally responsible as a party to the offense if the offense is committed by his own

conduct, by the conduct of another for which he is criminally responsible, or by both.

Id. § 7.01(a) (Vernon 2003). A person is criminally responsible for the offense committed

by the conduct of another if, “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.” Id. § 7.02(a)(2) (Vernon 2003).

         Villa argues that the evidence is insufficient to support his conviction because

there is no evidence that he used a gun to hit or shoot Rodriguez and because there is a

“lack of evidence that Appellant had the culpability required in a murder charge, or

that he did anything to promote or assist the use of the gun and the causing of

Rodriguez’s death by Garcia.”

         Proof of a culpable mental state almost invariably depends upon circumstantial

evidence. Krause v. State, 243 S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2007, pet.

ref’d). In determining whether a defendant participated in an offense as a party, the

fact-finder may examine the events occurring before, during, and after the commission

of the offense, and may rely on actions of the defendant that show an understanding

and common design to commit the offense. Frank v. State, 183 S.W.3d 63, 73 (Tex.

App.—Fort Worth 2005, pet. ref’d).

         A rational trier of fact could have found that Villa was aware that a gun was

going to be used in the commission of the offense. Gronowski testified that both Garcia

Villa v. State                                                                       Page 5
and Villa had guns. Furthermore, a rational trier of fact could have found that, even if

Villa did not know before the attack that Garcia intended to use a gun, it became

obvious to him during the attack that Garcia did have such an intent, yet he continued

to participate in the attack. See Crutcher v. State, 969 S.W.2d 543, 546-47 (Tex. App.—

Texarkana 1998, pet. ref’d). Thus, a rational trier of fact could have found that Villa, as

a party, intentionally or knowingly caused Rodriguez’s death or, with intent to cause

serious bodily injury to Rodriguez, committed an act clearly dangerous to human life

that caused Rodriguez’s death. See TEX. PENAL CODE ANN. § 19.02(b)(1), (2); Jackson, 443

U.S. at 318-19, 99 S.Ct. at 2789.

         Having decided that the evidence is sufficient to prove that Villa is criminally

responsible as a party to the offense because the offense was committed by another for

which he is criminally responsible, we need not address whether the evidence is

sufficient to prove that Villa is criminally responsible as a party to the offense because

the offense was committed by his own conduct. See TEX. PENAL CODE ANN. § 7.01(a).

We overrule Villa’s third and fourth issues.

         In his fifth issue, Villa contends that the jury instructions on the guilt-innocence

phase of the trial failed to require a unanimous verdict in contravention of the Texas

Constitution and Code of Criminal Procedure. Villa acknowledges that he did not

object to the charge on this ground.

         Because there was no objection made to the charge by Villa, we must first

determine whether the charge as submitted to the jury was erroneous and if so, we

must analyze this complaint utilizing the standard of Almanza v. State. Allen v. State, 253

Villa v. State                                                                         Page 6
S.W.3d 260, 264 (Tex. Crim. App. 2008) (citing Olivas v. State, 202 S.W.3d 137, 143-44

(Tex. Crim. App. 2006) (citing Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)

(op. on reh’g)).     Under Almanza, unobjected-to jury charge error will not result in

reversal of a conviction in the absence of “egregious harm.” Almanza, 686 S.W.2d at 171.

         Jury unanimity is required in all criminal cases. Ngo v. State, 175 S.W.3d 738, 745

(Tex. Crim. App. 2005). But while jury unanimity is required on the essential elements

of an offense, the jury generally is not required to return a unanimous verdict on the

specific method of committing a single offense. Jefferson v. State, 189 S.W.3d 305, 311

(Tex. Crim. App. 2006); see Ngo, 175 S.W.3d at 747 n.32.

         The court’s charge instructed the jury to find Villa guilty if he, acting alone or as

a party, either intentionally or knowingly caused Rodriguez’s death, or if with intent to

cause serious bodily injury to Rodriguez, he committed an act clearly dangerous to

human life which caused Rodriguez’s death.            Villa argues that because the guilt

question did not require the jury to specify which statutory provision (i.e., section

19.02(b)(1) or section 19.02(b)(2) of the penal code) applied, the charge failed to require a

unanimous verdict.       However, the provisions of section 19.02(b) do not describe

different offenses; rather, they merely set forth alternative methods of committing the

same offense. Yost v. State, 222 S.W.3d 865, 877 (Tex. App.—Houston [14th Dist.] 2007,

pet. ref’d) (citing Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. 1987) (op. on

reh’g)). The charge allowed the jury to convict Villa of only one offense—the murder of

Rodriguez.



Villa v. State                                                                          Page 7
         Villa’s complaint has been soundly rejected by our sister courts. See Bundy v.

State, 280 S.W.3d 425, 431-33 (Tex. App.—Fort Worth 2009, pet. ref’d); Yost, 222 S.W.3d

at 877-78; see also Perez v. State, No. 12-08-00390-CR, 2010 WL 5141765, at *4-5 (Tex.

App.—Tyler Dec. 15, 2010, no pet.) (mem. op., not designated for publication); Neal v.

State, No. 08-07-00232-CR, 2010 WL 160206, at *8-9 (Tex. App.—El Paso Jan. 13, 2010,

pet. ref’d) (not designated for publication); Campa v. State, No. 05-07-01210-CR, 2009 WL

1887123, at *7 (Tex. App.—Dallas Jul. 2, 2009, pet. ref’d) (not designated for

publication); Williams v. State, No. 03-05-00460-CR, 2008 WL 744710, at *5 (Tex. App.—

Austin Mar. 21, 2008, no pet.) (mem. op., not designated for publication). We likewise

conclude that the jury charge in this case did not permit the jury to reach a less than

unanimous verdict. The fact that the jury could have decided between two possible

means of committing the same offense does not present error. We overrule Villa’s fifth

issue.

         In his first issue, Villa contends that the trial court erred in denying his motion

for new trial. Villa filed a motion for new trial, claiming that “the testimony at trial

raised the issue of sudden passion and defense counsel was ineffective for failing to

request a charge on the issue at the punishment phase of trial and fully develop and

argue the issue.” The trial court denied the motion for new trial without a hearing.

         We review the trial court's ruling on a motion for new trial under an abuse of

discretion standard. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). In

conducting our review, we view the evidence in the light most favorable to the trial



Villa v. State                                                                        Page 8
court's ruling and uphold the ruling if it is within the zone of reasonable disagreement.

Id.

         To prevail on an ineffective assistance of counsel claim, the familiar Strickland v.

Washington test must be met. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535,

156 L.Ed.2d 471 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

2064, 80 L.Ed.2d 674 (1984)); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App.

2005) (same). Under Strickland, the appellant must prove by a preponderance of the

evidence that (1) counsel’s performance was deficient, and (2) the defense was

prejudiced by counsel’s deficient performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at

2535; Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Andrews, 159 S.W.3d at 101. Absent

both showings, an appellate court cannot conclude the conviction resulted from a

breakdown in the adversarial process that renders the result unreliable. Thompson v.

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

         When evidence from any source raises a defensive issue, and the defendant

properly requests a jury charge on that issue, the trial court must submit the issue to the

jury. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993). The evidence raising

such an issue may be “strong, weak, contradicted, unimpeached, or unbelievable.” Id.

The defendant’s testimony by itself is sufficient to raise a defensive issue requiring an

instruction in the jury charge. Stefanoff v. State, 78 S.W.3d 496, 499-500 (Tex. App.—

Austin 2002, pet. ref’d) (citing Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App.

1987)). When the evidence fails to raise a defensive issue, the trial court commits no

error in refusing a requested instruction. Id. It follows, then, that counsel would not

Villa v. State                                                                         Page 9
have been ineffective for failing to request an instruction when the evidence fails to

raise a defensive issue.

         Section 19.02(d) of the penal code states: “At the punishment stage of a trial, the

defendant may raise the issue as to whether he caused the death under the immediate

influence of sudden passion arising from an adequate cause.” TEX. PENAL CODE ANN. §

19.02(d). The analysis of whether the issue of sudden passion has been raised divides

into two inquiries. First, the record must show some evidence of “adequate cause”—

“cause that would commonly produce a degree of anger, rage, resentment, or terror in a

person of ordinary temper, sufficient to render the mind incapable of cool reflection.”

Id. § 19.02(a)(1). Second, the record must show some evidence of “sudden passion”—

“passion directly caused by and arising out of provocation by the individual killed or

another acting with the person killed which passion arises at the time of the offense and

is not solely the result of former provocation.” Id. § 19.02(a)(2).

         “Sudden passion” requires first that the record contain objective evidence that

direct provocation by the victim or someone acting with the victim occurred at the time

of the killing. See Merchant v. State, 810 S.W.2d 305, 310 (Tex. App.—Dallas 1991, pet.

ref’d). Evidence of prior provocation alone is not enough. See id. Second, the record

must also contain evidence from which the jury could subjectively decide the accused

killed the victim while in an excited and agitated state of mind arising out of the direct

provocation. See id. There must be evidence that the accused acted in the throes of

actual, subjective passion. See id.



Villa v. State                                                                       Page 10
         Villa testified in the punishment phase that he and Rodriguez had a history with

one another. Rodriguez and his brother thought that Villa had taken some drugs from

Rodriguez’s brother. Thus, Villa suspected that Rodriguez was involved when, on a

prior occasion, Villa’s car had been shot at in front of Rodriguez’s house. Because of

this shooting, Villa also suspected Rodriguez of shooting at his house about six days

before the incident at the convenience store. Villa’s mother, father, and one-year-old

nephew were in the room that the bullets had gone through, but none of them had been

injured. Soon after that, Garcia’s father was killed in a shooting at Garcia’s house, and

Villa had gone to his funeral the same day as the incident at the convenience store.

         When Villa saw Rodriguez at the convenience store, he wanted to ask him who

had shot at his house. Villa stated that if he had known for sure that Rodriguez had

shot at his house, he would have started fighting him immediately when he saw him.

But Villa stated, “I wasn’t sure. So I was going to ask him. You know, I wasn’t going to

-- you know, I wasn’t going to come at the wrong person.” Villa confronted Rodriguez

and asked Rodriguez who had shot at his house. Rodriguez smiled. Villa stated that it

made him “angry or something” and mad, like Rodriguez was “disrespecting me all the

way.” Villa said that after Rodriguez smiled, Villa wanted to fight him and “pretty

much knew that, yeah, we were probably going to end up having a fight.”

         Garcia hit Rodriguez first, and Villa and Rodriguez then started fighting. Villa

said that he did not want to kill Rodriguez or cause him serious bodily injury; he just

wanted to fight Rodriguez. Villa testified that he did not have a gun, and he did not




Villa v. State                                                                     Page 11
know that Garcia was going to have or use a gun. Villa first saw Garcia’s gun when he

brought it out and hit Rodriguez with it.

         We conclude that there is no evidence from which a jury could reasonably find

that Villa caused Rodriguez’s death under the influence of sudden passion. Villa’s

testimony shows that his alleged passion did not arise at the time of the offense; rather,

it was solely the result of former provocation. See, e.g., Hobson v. State, 644 S.W.2d 473,

478 (Tex. Crim. App. 1983). Villa admitted that if he had known for sure that Rodriguez

had shot at his house, he would have started fighting him immediately when he saw

him. Villa stated that he asked Rodriguez who had shot at his house just to make sure

he did not “come at the wrong person.” Furthermore, Villa’s testimony indicates that

his actions were the result of cool reflection and not sudden passion. Villa stated that

after Rodriguez smiled, he “pretty much knew that, yeah, we were probably going to

end up having a fight.” [Emphasis added.] Villa then waited until after Garcia hit

Rodriguez first to start fighting with him.

         Thus, the evidence does not raise the issue as to whether Villa caused

Rodriguez’s death under the immediate influence of sudden passion arising from an

adequate cause. See TEX. PENAL CODE ANN. § 19.02(d). Accordingly, Villa has not

shown that trial counsel’s performance was deficient for not requesting a charge on the

issue at the punishment phase. See Stefanoff, 78 S.W.3d at 499-500. Because Villa cannot

prove the first prong of the Strickland test, he cannot prevail on his ineffective assistance

of counsel claim, and we need not address the second prong of the Strickland test. See

Strickland, 466 U.S. at 697, 104 S.Ct. at 2069. Furthermore, because Villa cannot prevail

Villa v. State                                                                        Page 12
on his ineffective assistance of counsel claim, the trial court did not abuse its discretion

in denying his motion for new trial. See Webb, 232 S.W.3d at 112. We overrule Villa’s

first issue.

         In his second issue, Villa contends that the trial court erred in refusing to hold a

hearing on his motion for new trial. When examining a trial court’s denial of a hearing

on a motion for new trial, we review for an abuse of discretion. Smith v. State, 286

S.W.3d 333, 339 (Tex. Crim. App. 2009). The trial court abuses its discretion in failing to

hold a hearing if the motion and accompanying affidavits (1) raise matters which are

not determinable from the record and (2) establish reasonable grounds showing that the

defendant could potentially be entitled to relief. Hobbs v. State, 298 S.W.3d 193, 199

(Tex. Crim. App. 2009). Because we already determined above that Villa cannot prevail

on his ineffective assistance of counsel claim, we conclude that the trial court did not

abuse its discretion in refusing to hold a hearing on Villa’s motion for new trial. We

overrule his second issue.

         Having overruled all of Villa’s issues, we affirm the trial court’s judgment.



                                                   REX D. DAVIS
                                                   Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 18, 2011
Do not publish
[CRPM]


Villa v. State                                                                           Page 13
