AFFIRMED as modified; and Opinion Filed January 31, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-16-01459-CR

                              REYNALDO PALOMO, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 4
                                   Dallas County, Texas
                           Trial Court Cause No. F-1575896-K

                              MEMORANDUM OPINION
                           Before Justices Lang, Brown, and Whitehill
                                   Opinion by Justice Brown
       A jury convicted appellant Reynaldo Palomo of capital murder, and the trial court assessed

punishment at life without parole. In three issues, appellant contends the evidence was insufficient

to support his conviction because it did not prove (1) his identity as the perpetrator of the murder,

(2) that he intentionally murdered the complainant, or (3) a robbery. After reviewing the record,

we overrule these issues. In two additional issues, appellant seeks modification of the judgment

to accurately reflect the date judgment was entered and the offense for which he was convicted.

We sustain these issues, and modify the judgment. We affirm the trial court's judgment as

modified.
                                         BACKGROUND

       In June 2015, Mike Albanna and his girlfriend Sara Ewton ran two adjacent game rooms

in a small strip mall in Dallas, Texas. During the early hours of June 29, 2015, Albanna was

working in one of the game rooms (Game Room A). Ewton and a number of other people,

including Maria del Carmen Velasquez and Leighann Palmer, were in the second game room

(Game Room B).

       Appellant, Richard Cardoso, and Miguel Machado arrived at Game Room A together in

appellant’s pickup truck. Machado knew Cardoso well, but had only seen appellant a few times.

Before they arrived, appellant “hit the meth pipe.” Appellant stopped Cardoso from doing the

same, saying “wait till after.” It gave Machado a “weird feeling.”

       Albanna knew both appellant and Cardoso as customers, but did not know Machado. The

three men began to play eight-liner machines. After all of the other customers departed Game

Room A, appellant blocked the front door and pulled a gun out. According to Albanna, appellant

pointed the gun at him and said, “I’m here to rob you” and “I have to have some money.” Albanna

noticed Cardoso had moved into the game room’s office and was “digging through everything.”

Albanna told appellant that he did not have any money and slowly walked toward Game Room

A’s back door, where he turned and ran to the front door of Game Room B. Albanna was scared

appellant might kill him.

       Machado testified to a slightly different version of events in Game Room A. He heard

appellant and Albanna having a conversation and started paying attention after Albanna said “are

you crazy.” According to Machado, appellant said “something about, let me just borrow $1500,”

and Albanna responded that he “could get 50 or 60 people on ya’ll.” Machado had not heard what

the men said earlier, but noticed that appellant was holding a gun. Machado froze, believing it to

                                               –2–
be an attempted robbery. Although he had lost sight of Cardoso, the door to the office area was

open and Machado believed Cardoso was in the office. Machado observed Albanna slowly and

nervously backing away from appellant toward the game room’s back door and then running out.

            Albanna ran around to the front of the strip mall and banged on Game Room B’s door.

Velasquez was near the door, and she and several other individuals exited to see what was going

on. Meanwhile, appellant, Cardoso and Machado emerged from the front door of Game Room A.

Machado testified that Albanna, standing to their left, threw a cinder block towards them.

Machado ran to the truck. Although he did not see appellant or Cardoso shooting, he heard

appellant fire a number of gunshots from the front of the game rooms and Cardoso fire “quite a

few” shots from near the truck. Machado also observed another person in the parking lot in a

shooting stance, bobbing and weaving, but did not hear that person firing gunshots.

           Albanna testified appellant and Cardoso were shooting at him from approximately 15 feet

away. Appellant fired multiple shots while standing on the sidewalk near Game Room A’s front

door. Cardoso fired multiple shots as he moved toward the pickup truck. Albanna could see

bullets coming toward him; he was shot eleven times. Complainant Velasquez, approximately

three feet from Albanna, also was shot and died from a single gunshot wound.

           Ewton heard the shooting start immediately after Game Room B’s front door was opened.

She did not know how many shots she heard, but thought the shooting “wasn’t going to end” and

“everybody was going to die that day.” She tried to help Albanna as gunshots were still being

fired. He was shot again as Ewton tried to drag him in Game Room B, and his blood splattered on

her leg.

           Leighann Palmer was in Game Room B at the time of the shooting and, based on the

amount of gunfire, thought “they were in there to kill everybody . . . .” She had gone to Game

Room A to get some change approximately 30 to 45 minutes before the shooting began. She knew

                                                 –3–
appellant, and he was not in Game Room A at the time. Albanna was planning to close Game

Room A then, so Palmer believed he would not have let anyone else enter. Palmer acknowledged,

however, that she had no idea whether appellant arrived after she left Game Room A.

       After the shooting, appellant, Cardoso and Machado fled in appellant’s pickup truck. As

they drove away, Cardoso threw something out his window. Police later recovered a 40-caliber

handgun from the same area, and DNA analysis confirmed that Cardoso was a major contributor

of DNA on the handgun. The men abandoned the truck at a nearby intersection and fled on foot.

Cardoso and Machado ran one direction; appellant ran the opposite way. Machado and Cardoso,

wearing an empty holster, were arrested after hiding in a nearby house. Appellant was arrested a

few days later.

       Police recovered six fired 40-caliber cartridge casings from the strip center parking lot and

twelve fired 9mm cartridge casings on the sidewalk in front of the game rooms where Albanna

observed and Machado heard appellant shooting a weapon. A firearms examiner testified that all

of the 40-caliber cartridge casings were fired from the recovered handgun and all of the 9mm

cartridge casings were fired from the same unknown 9mm handgun.

       Detective Scott Sayers interviewed Albanna after Albanna was released from the hospital.

Sayers testified that Albanna identified appellant from a six-photo line-up as the shooter who

pointed a gun at him both inside Game Room A and outside in front of the game rooms. Sayers

also interviewed Machado, who denied knowing appellant. Machado also first told Sayers that

Albanna and others from Game Room B shot at him, Cardoso, and appellant as they emerged from

Game Room A. Machado later changed his story, saying that Albanna actually threw a cinder

block. Sayers testified that it was common for suspects to initially minimize their role in an

incident and later provide more information. After speaking with both Albanna and Machado,

Sayers concluded that their stories aligned.

                                               –4–
       Appellant was charged with capital murder under section 19.03(a)(2) of the penal code.

See TEX. PENAL CODE ANN. § 19.03(a)(2) (West 2011). The indictment alleged appellant

intentionally caused the death of Velasquez by shooting her with a firearm, a deadly weapon, in

the course of committing and attempting to commit the offense of robbery of Albanna. Following

a trial, the jury found appellant guilty of capital murder. The trial court assessed punishment of a

life sentence without the possibility of parole.

                                         APPLICABLE LAW

       To review the sufficiency of evidence to support a conviction, we consider all of the

evidence in the light most favorable to the jury's verdict and decide whether any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979); Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.

2011). We defer to the jury as factfinder; it is the sole judge of the weight and credibility of the

evidence and resolves any conflicts in that evidence. Adames, 353 S.W.3d at 860; Jones v. State,

944 S.W.2d 642, 647 (Tex. Crim. App. 1996). We determine whether the jury’s necessary

inferences are reasonable based on the “cumulative force of all of the evidence.” Adames, 353

S.W.3d at 860.

       We measure the sufficiency of the evidence by the elements of the offense as defined by a

hypothetically correct jury charge for the case. See Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997). A hypothetically correct charge accurately sets out the law, is authorized by

the indictment, does not unnecessarily increase the prosecution’s burden of proof or restrict its

theories of liability, and adequately describes the particular offense for which the defendant was

tried. Id. A person commits capital murder if he intentionally causes the death of an individual in

the course of committing or attempting to commit robbery. TEX. PENAL CODE ANN. § 19.03(a)(2).

A person commits robbery if, in the course of committing theft, and with intent to obtain or

                                                   –5–
maintain control of someone else’s property, he intentionally, knowingly, or recklessly causes

bodily injury to another. Id. § 29.02(a) (West 2011). A person commits theft if he unlawfully

appropriates property with the intent to deprive the owner of it. Id. § 31.03(a) (West 2011).

                                               IDENTITY

         In his first issue, appellant argues the evidence is insufficient to prove his identity as the

perpetrator of the offense. The prosecution must prove beyond a reasonable doubt that the

defendant is the person who committed the offense charged. Miller v. State, 667 S.W.2d 773, 775

(Tex. Crim. App. 1984). Identity may be proved by “either direct or circumstantial evidence,

coupled with all reasonable inferences from that evidence.” Gardner v. State, 306 S.W.3d 274,

285 (Tex. Crim. App. 2009). The testimony of a single eyewitness may be sufficient evidence to

identify a defendant as the perpetrator. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App.

1971).

         The evidence shows that Albanna was familiar with and recognized appellant when

appellant entered Game Room A. Thereafter, appellant brandished a gun in Game Room A and

subsequently fired the gun in the direction of Albanna and Velasquez outside the game rooms.

Following Albanna’s release from the hospital, he positively identified appellant in a photo line-

up as the individual who had pointed the gun inside Game Room A and as a shooter outside the

game rooms. At trial, Albanna again identified appellant as the perpetrator. Machado also

identified appellant at trial as the individual who pulled the gun in Game Room A and subsequently

fired shots outside the game rooms.

         Appellant, however, contends neither Albanna nor Machado were credible witnesses. He

concludes Albanna was untruthful because there was evidence to dispute his testimony at trial

regarding game room ownership and an individual known as “Mexican Mike,” whom witnesses

testified had broken into a gambling machine a few days before the offense. Appellant also

                                                  –6–
maintains Albanna’s identification was unreliable because Albanna testified he could not “clearly”

see the second and third man emerging from Game Room A, could not “see anything except

bullets” when he first got shot, could not see when the police arrived because he was on the ground,

and “wasn’t 100 percent” after he was shot. According to appellant, Machado was not a credible

witness because he was under indictment for the same offense. Finally, appellant cites the lack of

physical evidence to establish his identity as the perpetrator.

           Both Albanna and Machado, eyewitnesses to the offense, identified appellant as the

perpetrator, and their testimony is sufficient evidence to support appellant’s conviction. 1 See

Aguilar, 468 S.W.2d at 77. The jury heard all of Albanna’s testimony and the fact that Machado

also had been indicted for capital murder; it was free to accept or reject the evidence, including

accepting some portions and rejecting other portions of a particular witness’s testimony. See

Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). In doing so, the jury concluded

that appellant was the person who committed the offense. No additional physical evidence was

needed to corroborate the jury’s finding. See Aguilar, 468 S.W.2d at 77. Viewing all the evidence

in the light most favorable to the prosecution, we conclude a rational factfinder could have

concluded that appellant was indeed the perpetrator of Velasquez’s murder. Accordingly, we

overrule appellant’s first issue.

                                                                   INTENT

           In his second issue, appellant argues the evidence is insufficient to prove he intended to

murder Velasquez. He contends there was no evidence of his intent to murder anyone other than

possibly Albanna and, because the jury was not instructed on transferred intent, the prosecution




     1
       The jury charge properly instructed the jury that it could not convict appellant based solely on the testimony of an accomplice unless the
accomplice’s testimony was corroborated by other evidence tending to connect appellant with the offense. See TEX. CODE CRIM. PROC. ANN. ART.
38.14 (West 2011).

                                                                     –7–
could not rely on that theory to support his conviction. See TEX. PENAL CODE ANN. § 6.04(b)(1)

(West 2011).

       A person acts intentionally with respect to a result of his conduct when it is his conscious

objective or desire to cause the result. Id. § 6.03(a) (West 2011). Intent is usually proven by

circumstantial evidence. Trevino v. State, 228 S.W.3d 729, 736 (Tex. App.—Corpus Christi 2006,

pet. ref’d). The jury may infer intent from a defendant’s acts, words and conduct as well as the

means used and the wounds inflicted. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App.

1995); Womble v. State, 618 S.W.2d 59, 64 (Tex. Crim. App. 1981). A jury may infer specific

intent to kill from use of a deadly weapon in a deadly manner unless it is reasonably apparent that

death or serious injury could not result from the use of the weapon. Adanandus v. State, 866

S.W.2d 210, 215 (Tex. Crim. App. 1993); see also Jones, 944 S.W.2d at 647; Godsey v. State, 719

S.W.2d 578, 580-81 (Tex. Crim. App. 1986). And, if a deadly weapon is fired at close range and

death results, the law presumes an intent to kill. Womble, 618 at 64-65; Trevino, 228 S.W.3d at

736. A firearm is a deadly weapon. TEX. PENAL CODE ANN. § 1.07(a)(17) (West 2011).

       The jury heard evidence that appellant fired a number of gunshots in front of the game

rooms and police recovered 18 fired shell casings at the scene, twelve of which were fired from

the same 9mm handgun in front of the game rooms. Albanna could see the bullets coming towards

him and, standing 15 feet from appellant, suffered 11 gunshot wounds. Velasquez, approximately

three feet from Albanna, also was shot and died from a single gunshot wound.

       To show he had no intent to kill Velasquez, appellant argues that he “was likely unaware”

people were in Game Room B and “[t]he shooter was actively firing upon Albanna when the

complainant stepped into the fire.” Ewton, however, testified that the shooting began just after

Game Room B’s front door was opened so Velasquez and others could see what was happening.




                                               –8–
Indeed, Albanna was shot once as Ewton tried to drag him in Game Room B. And Parker, a

defense witness, thought “they were in there to kill everybody . . . .”

         The jury could have reasonably inferred appellant's intent to kill Velasquez from

eyewitness testimony that he fired a large number of rounds from a handgun, a deadly weapon per

se, in the direction of multiple people at close range and the fact that two of those people were

shot, resulting in one's death. See, e.g., Trevino, 228 S.W.3d at 737-38 (jury could reasonably

infer defendant specifically intended to kill either or both vehicle occupants when he fired semi-

automatic weapon into vehicle); see also Vuong v. State, 830 S.W.2d 929, 934 (Tex. Crim. App.

1992) (use of deadly weapon in a tavern filled with people is sufficient to support reasonable

inference of specific intent to kill); Medina v. State, 7 S.W.3d 633, 636-37 (Tex. Crim. App. 1999).

Considering all of the evidence in the light most favorable to the verdict, we conclude there is

sufficient evidence to prove beyond a reasonable doubt that appellant had the required intent to

kill Velasquez.

         The transferred intent theory may be properly applied when a defendant fires a weapon at

an intended victim in a group of other people; the offense is murder whether the intended victim

is killed or a different person in the group is killed. See TEX. PENAL CODE ANN. § 6.04(b)(2);

Trevino, 228 S.W.3d at 737; Pettigrew v. State, 999 S.W.2d 810, 812-13 (Tex. App.—Tyler 1999,

no pet.). The prosecution did not argue the transferred intent theory at trial, and the jury was not

instructed on the theory. As we have concluded that the jury could have reasonably inferred

appellant’s intent to kill Velasquez from the evidence presented at trial, we need not consider

whether the evidence also was sufficient to support his conviction under a hypothetically correct

jury charge including a transferred intent instruction. Accordingly, we overrule appellant's second

issue.




                                                –9–
                                            ROBBERY

       In his third issue, appellant argues there is no evidence of an underlying robbery to support

the capital murder conviction. Citing Machado’s testimony, appellant argues there was no

evidence appellant “spoke or threateningly brandished a gun in such a way as to indicate [he]

intended to obtain [Albanna’s] property.” Appellant also notes that no money was actually taken

from Albanna.

       Evidence is sufficient to prove an underlying robbery for purposes of a capital murder

conviction if it shows the defendant formed an intent to obtain or maintain control of property

before or contemporaneously with the murder. Shuffield v. State, 189 S.W.3d 782, 791 (Tex. Crim.

App. 2006); Lincecum v. State, 736 S.W.2d 673, 680 (Tex. Crim. App. 1987). The prosecution

does not have to prove the defendant completed the theft. Young v. State, 283 S.W.3d 854, 862

(Tex. Crim. App. 2009); Wolfe v. State, 917 S.W.2d 270, 275 (Tex. Crim. App. 1996). If there is

evidence from which the jury rationally could conclude beyond a reasonable doubt “that the

defendant formed the intent to obtain or maintain control of the victim's property either before or

during the commission of the murder, then the [prosecution] has proven that the murder occurred

in the course of robbery.” Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995).

       Machado testified he observed appellant holding a handgun while appellant and Albanna

had words. Machado heard appellant say something about borrowing $1500, to which Albanna

indicated he could get “50 or 60 people on ya’ll.” Machado nevertheless froze because he believed

he was seeing an attempted robbery. The jury also heard Albanna’s testimony that appellant

blocked the front door of Game Room A, pointed a gun at Albanna, and said, “I’m here to rob

you.” At the time, Cardoso had entered the office and was “digging through everything.” Albanna

further testified that he ran around to Game Room B to “get away from them” because they were

“trying to rob me.”

                                               –10–
       Although Albanna’s and Machado’s versions of events were not identical, a rational

factfinder likewise could have reasonably inferred that appellant brandished a gun and spoke

threateningly in a manner indicating he intended to take money from Albanna. The State did not

have to prove appellant actually completed the theft in order to establish the underlying offense.

See Young, 283 S.W.3d at 862. Reviewing the evidence in the light most favorable to the verdict,

there is sufficient evidence of an underlying robbery to support appellant’s conviction. We

overrule appellant’s third issue.

                                            JUDGMENT

       In his fourth and fifth issues, appellant seeks correction of the trial court’s judgment to

accurately reflect the date the judgment was entered and the offense for which he was convicted.

If a record contains the necessary information, we may modify an incorrect judgment to correct

clerical errors. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993);

Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref’d). Here, the

judgment incorrectly reflects December 6, 2016 as the date judgment was entered, sentence was

imposed, and sentence was to commence. The trial court, however, signed the judgment on

December 9, 2016. The judgment also incorrectly recites that appellant was convicted of “capital

murder/terrorist threat” despite the jury convicting appellant of capital murder as charged in the

indictment. Accordingly, we sustain appellant’s fourth and fifth issues and modify the judgment

to reflect the correct date of judgment and sentencing as December 9, 2016 and the correct offense

as capital murder.




                                               –11–
       We affirm the trial court’s judgment as modified and order the trial court to enter an

amended judgment reflecting these modifications.




                                               /Ada Brown/
                                               ADA BROWN
                                               JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)

161459F.U05




                                            –12–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 REYNALDO PALOMO, Appellant                         On Appeal from the Criminal District Court
                                                    No. 4, Dallas County, Texas
 No. 05-16-01459-CR         V.                      Trial Court Cause No. F-1575896-K.
                                                    Opinion delivered by Justice Brown;
 THE STATE OF TEXAS, Appellee                       Justices Lang and Whitehill participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       We REPLACE “December 6, 2016” with “December 9, 2016” as the date
       judgment was entered, sentence was imposed, and sentence was to commence and
       REPLACE “capital murder/terroristic threat” with “capital murder” as the
       offense.

As modified, the judgment is AFFIRMED.


Judgment entered this 31st day of January, 2018.




                                             –13–
