Opinion issued March 1, 2016




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-14-00972-CR
                           ———————————
                       FLORENCIO LEAL, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 209th District Court
                           Harris County, Texas
                       Trial Court Case No. 1271369


                         MEMORANDUM OPINION

      Appellant, Florencio Leal, was found guilty by a jury of the offense of

capital murder.1 The trial court sentenced Appellant to the mandatory sentence of




1
      See TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon Supp. 2015).
life in prison without parole.2 Raising four issues, Appellant asserts the trial court

committed charge error, claims the trial court erred by admitting extraneous

offense evidence, and asserts that the evidence is insufficient to support his

judgment of conviction.

      We affirm.

                                    Background

      Tracy Woodman lived on Lucore Street in Houston, Texas. Across the

street from Woodman lived Andres Gonzalez. Around 8:30 p.m. on April 8, 2010,

Woodman heard three to five gunshots outside her home. She went out onto her

porch and noticed that the front door of Gonzalez’s house was open and the lights

were on inside the home. Woodman saw two men at the house. She first noticed a

short, Hispanic man standing in the front doorway. She saw that man fire a gun he

was holding. She then saw a tall Hispanic man come from the side of the house

into the yard. As they left, Woodman saw the two men shooting at Gonzalez’s

house.

      Woodman observed the men get into a car that looked like a Ford Taurus.

The car left and she saw a Honda Civic, which had been parked across the street,

follow the Taurus.




2
      See TEX. PENAL CODE ANN. § 12.31(a)(2) (Vernon Supp. 2015).

                                          2
          Woodman called 9-1-1. When the police arrived, they found Gonzalez dead

in his house from gunshot wounds. The police recovered a .22 pistol and narcotics

from the house. They also noticed a red smear on the outside doorjamb, which

police initially believed to be blood.

          Officer R. Bolton, a homicide detective with the Houston Police

Department, investigated Gonzalez’s murder. From the location of the red smear,

Officer Bolton deduced that one of shooters had also been shot. Officer Bolton

also deduced that the men had fled in the direction of Pasadena. He contacted the

Pasadena Police Department to determine whether any gunshot wounds had been

reported.     Officer Bolton learned that Appellant had gone to the hospital in

Pasadena on the night of Gonzalez’s murder with a gunshot wound.

          Officer Bolton obtained Appellant’s address from the Pasadena police

department. He contacted Appellant’s family and learned that Appellant planned

to flee to Mexico with the aid of an acquaintance. The police contacted the

acquaintance, and he agreed to help police.         When he went to meet the

acquaintance, Appellant was taken into custody by police.

          Appellant agreed to give a recorded statement to the police.    In the

statement, Appellant explained what had occurred on the night Gonzalez was

killed.     He said that Javier Cortez called him and told him that he needed

Appellant’s assistance to “take care of some business.” Appellant met Cortez.



                                          3
Cortez instructed him to drive a turquoise Grand Am to Appellant’s mother’s

house, and Appellant did so. Appellant said that there were four guns in the

backseat of the Grand Am, including a .357 firearm, a .40 firearm, and a shotgun.

About 30 minutes after he got to his mom’s house, Javier and Javier’s cousin

arrived in a small, tan four-door car. They got into the Grand Am with Appellant

and told him to go to Walmart to buy “some slugs” for the shotgun. Appellant

stated that he went to Walmart but did not purchase the ammunition because

Walmart did not have the slugs.

      When Appellant returned from Walmart, the three men drove to Gonzalez’s

house on Lucore in the turquoise Grand Am and the small tan car. Appellant and

Cortez were in one car and the cousin was in the other. Cortez told Appellant that

he and his cousin planned to “shoot up” the house while Appellant searched the

house to find “drugs and money.” When they arrived, Gonzalez opened the front

door, and Cortez’s cousin shot Gonzalez two or three time. Appellant stated that

Gonzalez fell back against the couch. Appellant came into the house after the

cousin. Appellant immediately began searching the kitchen for drugs and money.

Cortez came in last. Appellant stated that, when he entered, Cortez also shot

Gonzalez a number of times. Appellant searched the kitchen cabinets and one

bedroom but found neither drugs nor money in the house.




                                        4
      Appellant said that the three men left the scene in the two cars. Appellant

and Cortez went to a club for a couple of hours without the cousin. The two men

met the cousin again later that night. Cortez told Appellant that they were going to

another house on Dade Street. Appellant indicated that they went to the Dade

house to steal “dope money.”

      The three men then rode together in the tan car to the Dade Street house.

When they arrived, Cortez took the shotgun and Appellant had the .357 firearm.

They walked up to the house, and Cortez shot the door open. Appellant explained

that, when he stepped inside the house, he was immediately shot in the arm. The

three men then left the house. Cortez and his cousin dropped Appellant off at the

hospital to be treated for his gunshot wound.

      Appellant was charged with the offense of capital murder. Among the

State’s witnesses at trial were Tracy Woodman and Officer Bolton. The State also

offered (1) forensic evidence from the Lucore Street crime scene, (2) a video,

showing Appellant in the ammunition department of Walmart on the day of the

murder, and (3) Appellant’s audio-recorded statement in which he implicated

himself in the robbery and murder of Gonzalez.

      The jury charge authorized the jury to convict Appellant as a principal actor

or as a party to the offense under either Section 7.02(a)(2)—aider and abettor—or

Section 7.02(b)—co-conspirator—of the Texas Penal Code. Appellant objected to



                                         5
the submission of the Section 7.02(b) co-conspirator instruction on the ground that

Section 7.02(b) was unconstitutional.         The trial court overruled Appellant’s

objection to the charge.

      The jury found Appellant guilty of the offense of capital murder. The trial

court sentenced Appellant to life in prison without the possibility of parole.

Appellant now appeals, raising four issues.

                           Sufficiency of the Evidence

      In his fourth issue, Appellant asserts that the evidence was not sufficient to

support the judgment of conviction.

A.    Standard of Review and Capital Murder Elements

      We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under the single

standard of review, regardless of whether an appellant presents the challenge as a

legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49, 53–54

(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority holding of

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)). This standard of review

is the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). See Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App.

2013). Pursuant to the Jackson standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the



                                          6
verdict, no rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071

(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be

insufficient under the Jackson standard in two circumstances: (1) the record

contains no evidence, or merely a “modicum” of evidence, probative of an element

of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See

Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see

also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes that the fact finder resolved any conflicts

in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.

      In our review of the record, direct and circumstantial evidence are treated

equally; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor, and circumstantial evidence alone can be sufficient to



                                          7
establish guilt. Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point

directly and independently to the guilt of the appellant, as long as the cumulative

force of all the incriminating circumstances is sufficient to support the conviction.”

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

       A person commits capital murder if he intentionally commits murder while

in the course of committing or attempting to commit robbery. TEX. PENAL CODE

§ 19.03(a)(2) (Vernon Supp. 2015). A person commits murder if he “intentionally

or knowingly causes the death of an individual.” Id. § 19.02(b)(1) (Vernon 2011).

A person commits robbery if “in the course of committing theft and with intent to

obtain or maintain control of . . . property, he intentionally, knowingly, or

recklessly causes bodily injury to another; or intentionally or knowingly threatens

or places another in fear of imminent bodily injury or death.” Id. § 29.02(a)(1)–(2)

(Vernon 2011). Theft is the unlawful appropriation of property with the intent to

deprive the owner of the property. Id. § 31.03(a) (Vernon Supp. 2015).

       A person may be charged with an offense if it is committed by his own

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

Id. § 7.01(a)–(b) (Vernon 2011). The law of parties is codified by section 7.02 of

the Penal Code, which provides that:

       (a) A person is criminally responsible for an offense committed by the
       conduct of another if:

....


                                          8
         (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
      ....

      (b) 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.

Id. § 7.02(a)(2), (b) (Vernon 2011). A factfinder may determine that an individual

is a party to an offense when the evidence shows that there was “an understanding

and common design to commit the offense.” Gross v. State, 380 S.W.3d 181, 186

(Tex. Crim. App. 2012).

B.    Analysis

      Appellant complains that the evidence is insufficient to support his

conviction because “[t]he only evidence connecting [him] to the crime was his own

confession” and his confession is not sufficiently corroborated by independent

evidence. In making this argument, Appellant is invoking the corpus delicti rule.3




3
      Appellant claims that the evidence is insufficient to support a finding of guilt. In
      so doing, Appellant complains that his confession is not sufficiently corroborated
      by independent evidence. Thus, Appellant has blended the standard for whether a
      confession is sufficiently corroborated with the standards for sufficiency of the
      evidence to support his conviction. These standards are distinct; however, in the
      interest of justice, we will consider each standard. See Gonzales v. State, No. AP–
      75540, 2009 WL 1684699, at *3 (Tex. Crim. App. June 17, 2009) (not designated
      for publication).

                                           9
      The corpus delicti rule is one of evidentiary sufficiency affecting cases in

which there is an extrajudicial confession. Miller v. State, 457 S.W.3d 919, 924

(Tex. Crim. App. 2015). The rule states that, “[w]hen the burden of proof is

‘beyond a reasonable doubt,’ a defendant’s extrajudicial confession does not

constitute legally sufficient evidence of guilt absent independent evidence of the

corpus delicti.” Id. (quoting Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim.

App. 2013)).     To satisfy the corpus delicti rule, there must be “evidence

independent of a defendant’s extrajudicial confession show[ing] that the ‘essential

nature’ of the charged crime was committed by someone.” Id. (quoting Hacker,

389 S.W.3d at 866).

      The purpose of the corpus delicti rule is to ensure that a person is not

convicted of a crime that never occurred, based solely on that person’s extra-

judicial confession. Salazar v. State, 86 S.W.3d 640, 644 (Tex. Crim. App. 2002).

The rule was not intended to ensure that all confessions are corroborated in specific

details or to ensure that the suspect does not falsely confess to a crime that did

occur but for which he had no culpability. Id.

      When the offense is capital murder charged as a murder in the course of

committing another felony, independent evidence that a crime has been committed

must corroborate both the murder and the underlying felony. Cardenas v. State, 30

S.W.3d 384, 390 (Tex. Crim. App. 2000). “[T]he corpus delicti of murder is



                                         10
established if the evidence shows the death of a human being caused by the

criminal act of another.” McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App.

1997). With respect to the underlying felony, it is only required that there is some

evidence rendering the commission of the offense more probable than it would

have been without the evidence; the underlying felony need not be conclusively

proven by corroborative evidence. Salazar , 86 S.W.3d at 644.

      “It satisfies the corpus delicti rule if some evidence exists outside of the

extra-judicial confession which, considered alone or in connection with the

confession, shows that the crime actually occurred.”       Id.   The corroborating

evidence need not conclusively prove the underlying offense; rather, “[a]ll that is

required is that there be some evidence which renders the commission of the

offense more probable than it would be without the evidence.” Cardenas, 30

S.W.3d at 390 (quoting Chambers v. State, 866 S.W.2d 9, 15 (Tex. Crim. App.

1993)). The State may prove the corpus delicti by circumstantial evidence. See

McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). In short, “the

quantum of independent evidence necessary to corroborate the corpus delicti in a

criminal prosecution relying upon the extrajudicial confession of an accused need

not be great.” Gribble v. State, 808 S.W.2d 65, 71–72 (Tex. Crim. App. 1990).

      Here, the independent evidence offered at trial established the corpus delicti

of murder. Woodman testified that she heard several gunshots and then saw two



                                        11
men shooting at Gonzalez’s home. When they arrived, the police found Gonzales

dead in his home with multiple gunshot wounds. A total of twenty-one shell

casings—eighteen .40 caliber casings and three .357 caliber casings—were

recovered from the scene by police. The assistant medical examiner testified that

she had ruled Gonzalez’s death a homicide.               She stated that the cause of

Gonzalez’s death was “gunshot wounds of the chest, abdomen, and legs.” Given

all the record evidence, other than Appellant’s extrajudicial confession, we hold

that evidence was presented tending to establish that Gonzalez was murdered by

someone; thus, sufficient independent evidence establishes the corpus delicti of

murder.4


4
      Appellant asserts that there needed to be evidence corroborating his admission that
      he was at the crime scene. Contrary to Appellant’s position, the perpetrator’s
      identity is not a part of the corpus delicti and need not be corroborated. Chambers
      v. State, 866 S.W.2d 9, 15 (Tex. Crim. App. 1993). As mentioned, the corpus
      delicti rule was not intended to ensure that all confessions are corroborated in
      specific details or to ensure that the suspect does not falsely confess to a crime that
      did occur but for which he had no culpability. Salazar v. State, 86 S.W.3d 640,
      644–45 (Tex. Crim. App. 2002). In any event, we note that many details given by
      Appellant in his confession were corroborated by other evidence. For example,
      Appellant stated that he had gone to Walmart to buy slugs for the shotgun. A
      video from Walmart, taken the day of the murder, shows Appellant in the sporting
      goods department where ammunition is sold. In his statement, Appellant said that
      he and the other two men had gone to Gonzalez’s house in two cars. Woodman
      testified that she saw two cars leaving the scene. Appellant stated that Gonzalez
      was shot multiple times. Woodman testified that she heard multiple shots and then
      saw the men shooting multiple times. The evidence also showed that Gonzalez
      had been shot multiple times. Appellant stated that there was a .40 caliber and a
      .357 caliber gun in the Grand Am. He also indicated that Gonzalez was shot with
      two different guns. The forensic evidence showed that two guns were used at the
      scene, a .40 caliber gun and a .357 caliber gun. Appellant stated that Gonzalez fell

                                            12
      Concerning the underlying offense of robbery, we determine whether the

independent evidence which, considered with the confession, proved that someone

committed the crime of robbery. See Salazar, 86 S.W.3d at 645. There need only

be some evidence rendering the commission of the robbery offense more probable

than it would have been without the evidence. See id. Here, Appellant confessed

that he went into Gonzalez’s house to look for drugs and money. He stated that he

searched in the kitchen and one of the bedrooms for these items but did not find

any. Woodman testified that she heard the initial gunshots and had been looking at

Gonzalez’s house a couple of minutes before the man she saw standing in the

doorway fired his gun. Less than a minute later, Woodman saw the second man

come from the direction of the side of the house. The jury could have inferred that,

during the time that Woodman heard no gunfire, the house was being searched.

      One of the investigating police officers testified that Gonzalez’s house had

been ransacked. He stated that the house appeared “like there had been a fight or

somebody had ransacked looking for something.” See, e.g., Williams v. State, 958

S.W.2d 186, 190 (Tex. Crim. App. 1997) (stating that “murder scene itself showed

signs of robbery,” such as ransacked drawers, sufficient to corroborate defendant’s

robbery confession).    In addition, the evidence showed that narcotics were


      near the couch when he was shot. The crime scene evidence showed Gonzalez’s
      body lying against the couch. Thus, many specific details of Appellant’s
      statement were corroborated by other evidence in the record.

                                        13
recovered from Gonzalez’s kitchen, one of the places that Appellant stated that he

had looked for the drugs.    Lastly, as discussed, the bodily injury element of

robbery was also shown by independent evidence. We conclude that this evidence

rendered the Appellant’s commission of robbery more probable than it would have

been, if it had been based on the Appellant’s confession alone. We hold that

Appellant’s admission to acting as a party to murder and robbery were sufficiently

corroborated by independent evidence.

      Appellant also asserts that the evidence was insufficient to support his

conviction because “there is no evidence [he] unlawfully appropriated property

with intent to deprive the owner of the property.” He points out that Woodman did

not testify that she saw either of the men “carr[y] off any property and not one of

the law enforcement witnesses testified any property was missing or unlawfully

appropriated.”

      Appellant’s argument is without merit. A person commits theft if the person

“unlawfully appropriates property with intent to deprive the owner of property.”

TEX. PENAL CODE ANN. § 31.03(a). A person commits robbery if, in the course of

committing theft and with intent to obtain or maintain control of property, the

person intentionally, knowingly, or recklessly causes bodily injury to another or

intentionally or knowingly threatens or places another in fear of imminent bodily

injury or death. Id. § 29.02(a); see also Cooper v. State, 67 S.W.3d 221, 222 (Tex.



                                        14
Crim. App. 2002). The Penal Code defines “in the course of committing theft” as

“conduct that occurs in an attempt to commit, during the commission, or in

immediate flight after the attempt or commission of theft.” TEX. PENAL CODE

ANN. § 29.01(1) (Vernon 2011). Thus, “the State is not required to show a

completed theft to establish the corpus delicti of robbery.” Llamas v. State, 270

S.W.3d 274, 279 (Tex. App.—Amarillo 2008, no pet.). In addition, Appellant

admitted in his statement that he searched Gonzalez’s home for the purpose of

taking drugs and money.

      We hold that the evidence presented at trial was sufficient to support the

judgment of conviction. Given that independent evidence shows that the crimes of

murder and robbery actually occurred, Appellant’s confession alone was sufficient

to prove, beyond a reasonable doubt, his guilt of all the elements of capital murder

as a party. See Fisher v. State, 851 S.W.2d 298, 304 (Tex. Crim. App. 1993)

(holding that confession, together with evidence that charged crime was committed

by someone, was sufficient to support conviction).

      We overrule Appellant’s fourth issue.

                Constitutionality of Penal Code Section 7.02(b)

      In his first and second issues, Appellant asserts that the trial court erred

when it instructed the jury, pursuant to Penal Code Section 7.02(b), that Appellant

could be found guilty as a co-conspirator. In analyzing a jury-charge issue, our



                                        15
first duty is to decide if there was error. See Almanza v. State, 686 S.W.2d 157,

174 (Tex. Crim. App. 1984); Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d). Only if we find error do we consider whether

an objection to the charge was made and analyze for harm.             Tottenham, 285

S.W.3d at 30.

      Under Section 7.02(b), all the conspirators intending to commit one felony

may be convicted for any other felony actually committed in furtherance of the

intended felony if such felony was one that should have been anticipated in the

attempt to carry out the intended felony. See TEX. PEN. CODE ANN. § 7.02(b). In

this case, the trial court gave the following Section 7.02(b) instruction:

      [Y]ou must find from the evidence beyond a reasonable doubt that on
      the occasion in question the defendant, Florencio Leal, entered into an
      agreement with Javier Cortez and other unidentified suspects to
      commit the felony offense of robbery of Andres Gonzalez, as alleged
      in this charge, and pursuant to that agreement they did carry out their
      conspiracy, and while in the course of committing said conspiracy,
      Javier Cortez and other unidentified suspects intentionally caused the
      death of Andres Gonzalez by shooting Andres Gonzalez with a deadly
      weapon, namely a firearm, and the murder of Andres Gonzalez was
      committed in furtherance of the conspiracy and was an offense that
      should have been anticipated by the defendant as a result of carrying
      out the conspiracy . . . .

      Appellant asserts that the trial court erred in giving the instruction because

Section 7.02(b) is unconstitutional under Enmund v. Florida, 458 U.S. 782, 102 S.

Ct. 3368 (1982). In Enmund, the United States Supreme Court held that the Eighth

Amendment does not permit imposition of the death penalty on “one who aids and


                                          16
abets a felony in the course of which a murder is committed by others but who

does not himself kill, attempt to kill, or intend that a killing take place or that lethal

force will be employed.” Id. at 797, 102 S. Ct. at 3376.

      Appellant     claims    that,   pursuant   to   Enmund,     Section    7.02(b)    is

unconstitutional as applied to him because no evidence showed that he had the

intent to kill Gonzales. He also asserts that the statutory provision is facially

unconstitutional “because §7.02(b) does not require the state to prove the required

mens rea for the offense of capital murder required under Enmund v. Florida . . . .”

      Appellant’s reliance on Enmund is misplaced.             The Court of Criminal

Appeals has made clear that, while it prevents imposing the death penalty under

certain circumstances, Enmund does not forbid a capital murder conviction for a

non-triggerman under the law of parties. See Johnson v. State, 853 S.W.2d 527,

534–535 (Tex. Crim. App. 1992) (holding that an individual may be found guilty

of capital murder based on the law of parties without violating Enmund and noting

that Court of Criminal Appeals has continually held that Section 7.02 applies to

capital murder cases); Murphy v. State, No. AP–74851, 2006 WL 1096924, at *21

(Tex. Crim. App. Apr. 26, 2006) (not designated for publication) (holding that trial

court did not err by overruling Enmund objection to Section 7.02(b) instruction in

capital murder case).




                                           17
      Moreover, in Enmund, the Supreme Court held that the Eighth Amendment

prohibits the imposition of the death penalty for aiding and abetting felony murder

458 U.S. at 797, 102 S. Ct. at 3378. Death sentences differ significantly from life

imprisonment. See Gardner v. Florida, 430 U.S. 349, 357, 97 S. Ct. 1197 (1977)

(concluding that death penalty “is a different kind of punishment from any other

which may be imposed in this country”). Here, the State did not seek the death

penalty against Appellant. Because its holding is confined to the application of the

death penalty, Enmund is of limited application in this case. See Cienfuegos v.

State, 113 S.W.3d 481, 495 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

      Lastly, we explained in Cienfuegos that “section 7.02(b) does not dispense

with the requirement of a culpable mental state in regard to a capital murder

conviction under the law of parties.” Id. at 493. We explained,

      [Section 7.02(b)] provides that 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.”

Id. (quoting TEX. PEN. CODE ANN. § 7.02(b)); see also Gravis v. State, 982 S.W.2d

933, 938 (Tex. App.—Austin 1998, pet. ref’d) (holding that Section 7.02(b) does

not lack a mens rea requirement and is not facially unconstitutional in regard to

defendants convicted of capital murder as conspirators to commit other felonies).



                                        18
Here, the Section 7.02(b) instruction comported with the statutory language,

requiring a mens rea.

      We hold that Appellant has not shown that the trial court erred by instructing

the jury that it could find Appellant guilty as a co-conspirator. We overrule

Appellant’s first and second issues.

                          Extraneous-Offense Evidence

      In his third issue, Appellant asserts that the trial court erred by admitting

extraneous-offense evidence regarding his participation in the attempted robbery of

the house on Dade Street later the same night as the Gonzalez murder. As he did at

trial, Appellant asserts that the evidence of the Dade Street robbery is not

admissible extraneous-offense evidence under Rule of Evidence 404(b), and he

claims that the evidence should have been excluded under Rule of Evidence 403

because its probative value was outweighed by the danger of unfair prejudice. See

TEX. R. EVID. 403, 404(b).

A.    Legal Principles

      We review a trial court’s ruling on the admissibility of extraneous offenses

for an abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343–44 (Tex.

Crim. App. 2009). We will not reverse a trial court’s ruling on evidentiary matters

unless the decision was outside the zone of reasonable disagreement. Winegarner

v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). If the trial court’s ruling



                                        19
can be justified on any theory of law applicable to the ruling, the ruling will not be

disturbed. De La Paz, 279 S.W.3d at 344. “When a trial court further decides not

to exclude the evidence, finding that the probative value of the evidence is not

outweighed by the danger of unfair prejudice, this decision too shall be given

deference.” Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

      Rule 404(b) prohibits the introduction of extraneous offenses to show

character conformity. TEX. R. EVID. 404(b); Page v. State, 137 S.W.3d 75, 78

(Tex. Crim. App. 2004); Blackwell v. State, 193 S.W.3d 1, 8 (Tex. App.—Houston

[1st Dist.] 2006, pet. ref’d). Evidence of extraneous offenses may, however, be

admissible to show “motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident.” TEX. R. EVID. 404(b); see also

Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990). Evidence of

an extraneous offense is also admissible if it is relevant to a fact of consequence

apart from the tendency to show conduct in conformity with character. See Casey

v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). In addition, even when the

admission of extraneous evidence is permissible under rule 404(b), such evidence

may still be excluded, under Rule 403, if its probative value is substantially

outweighed by the danger of unfair prejudice. See TEX. R. EVID. 403; Blackwell,

193 S.W.3d at 9.




                                         20
B.    Harmless Error

      Even if we assume that the trial court abused its discretion by admitting the

extraneous-offense testimony, we will not reverse the judgment if the error was

harmless. See TEX. R. APP. P. 44.2. Error in admitting evidence concerning

extraneous offenses is reviewed as non-constitutional error. See Casey v. State,

215 S.W.3d 870, 885 (Tex. Crim. App. 2007).           Rule of Appellate Procedure

44.2(b) provides that an appellate court must disregard non-constitutional error not

affecting a criminal defendant’s substantial rights. 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. Schmutz v. State, 440 S.W.3d

29, 39 (Tex. Crim. App. 2014) (citing Motilla v. State, 78 S.W.3d 352, 355 (Tex.

Crim. App. 2002)).     In assessing the likelihood that the jury’s decision was

adversely affected by the error, an appellate court considers everything in the

record.   Id. This includes testimony, physical evidence, jury instructions, the

State’s theories and any defensive theories, closing arguments, and voir dire, if

applicable. Id. (citing Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App.

2003)). Important factors include the nature of the evidence supporting the verdict,

the character of the alleged error and how it might be considered in connection

with other evidence in the case, and may include whether the State emphasized the

error and whether overwhelming evidence of guilt was present. Id.



                                         21
          The alleged error here was the admission of the portion of Appellant’s

confession in which he described his participation in the Dade Street robbery. In

other words, the error involved the admission of extraneous-offense evidence of a

similar character to the charged offense. The danger posed by admitting evidence

of this nature is that it improperly amplifies a defendant’s participation in the

charged offense; it often serves no other purpose. See Dekneef v. State, 379

S.W.3d 423, 435 (Tex. App.—Amarillo 2013, pet. ref’d). In this vein, the State

referenced the Dade Street robbery in its closing argument as follows:

          [H]ow many guns do they have? Four guns. He knew what they were
          going to do. Went to kill the guy and get the stuff. And a second
          house. The defendant got shot in the process. There is no absence of
          mistake. They didn’t know they were going to the first house to shoot
          people up? This is what they do in the evening.

We note, however, that the primary focus of the State’s closing argument, overall,

was the evidence that related directly to the charged offense.

          In addition to considering its character and purpose, it is important to place

the extraneous-offense evidence in the context of the other evidence presented at

trial. See Walter v. State, 293 S.W.3d 886, 891 (Tex. App.—Texarkana 2009, pet.

ref’d).     When we do so, the record here reveals that the extraneous-offense

evidence likely had little effect or influence on the jury’s verdict for two reasons.

First, although it involved the serious and violent crime of aggravated robbery, the

facts of the Dade Street robbery were not as disturbing as those of the charged



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offense. While the charged offense involved the cold-blooded killing of Gonzalez,

the jury heard that it was Appellant who was shot during the Dade Street robbery.

No other person was injured. The robbery was short lived, being aborted once

Appellant was shot in the arm.

      Second, and most importantly, the record contains overwhelming evidence

of Appellant’s guilt. Evidence obtained during the investigation indicated that

Gonzalez had been robbed and murdered.          Appellant, in his audio-recorded

confession, confessed his involvement in the crime. He admitted that he searched

for drugs and money in Gonzalez’s house while Cortez and the cousin killed

Gonzalez by shooting him multiple times. Appellant also admitted that he had

agreed to search the house for these items before he entered the home and that he

knew the other two men planned to use guns during the robbery to shoot up the

house. Such evidence was more than sufficient to prove Appellant’s guilt as a

party to capital murder, both as an aider and abettor and as a co-conspirator. See

TEX. PENAL CODE ANN. §§ 7.02(b), 19.03(a)(2).

      In sum, although the extraneous-offense evidence may have resulted in some

prejudice to Appellant, the quantity and the nature of the evidence underlying the

verdict supports a determination that the admission of the evidence did not affect

Appellant’s substantial rights because, after examining the record as a whole, we

have a fair assurance that the error did not influence the jury, or had but a slight



                                        23
effect. See Motilla, 78 S.W.3d at 355; see also Walter, 293 S.W.3d at 895–86

(holding that erroneous admission of hearsay testimony that three victims pleaded

for their lives before being murdered by Walter was harmless error given volume

and nature of evidence supporting Walter’s capital murder conviction; evidence

included Walter’s inculpatory statement to his family that he had been the shooter).

We hold that any error in admitting the extraneous-offense evidence was not

harmful. See TEX. R. APP. P. 44.2(b); see also Dekneef, 379 S.W.3d at 435

(holding, in sexual-assault-of-a-child case, that Dekneef’s inadmissible statement,

that he generally had an “affinity” for children, was harmless error given his

confession of sexually assaulting the complainant).

      We overrule Appellant’s third issue

                                    Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Higley, Huddle, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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