                                   NUMBER 13-06-00553-CR

                                   COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


ERIC LEONARD SIPERKO,                                                                          Appellant,

                                                      v.

THE STATE OF TEXAS,                                                                             Appellee.


      On appeal from the 264th District Court of Bell County, Texas.


                              MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Benavides and Wittig1
                Memorandum Opinion by Justice Wittig

        Appellant, Eric Leonard Siperko, was indicted and convicted of the capital murder

of Jason Gonzales by shooting him with a firearm in the course of committing or attempting

to commit the offense of robbery. See T EX . P ENAL C ODE. Ann.                   §   19.03 (Vernon 2004).

After the trial by jury, sentence was orally pronounced in the trial court the same day.


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         Retired Fourteenth Court of Appeals Justice Don W ittig assigned to this Court by the Chief Justice
of the Suprem e Court of Texas pursuant to the governm ent code. T EX . G O V ’T C OD E A N N . § 74.003 (Vernon
2005).
Notice of appeal was timely filed. In a single issue appellant challenges the factual

sufficiency of the evidence to support the conviction of capital murder.2

                                          1. Standard of Review

        In reviewing legal sufficiency, we look at all of the evidence in the light most

favorable to the prosecution to determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Vasquez v. State,

67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Legally sufficient evidence supporting a

conviction exists if the court, after reviewing the evidence in the light most favorable to the

prosecution, determines that a rational trier of fact could have found the essential elements

of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19

(1979).

        Evidence may be factually insufficient if: (1) it is so weak as to be clearly wrong and

manifestly unjust, or (2) the adverse finding is against the great weight and preponderance

of the available evidence. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007)

(citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). The evidence, though

legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly

wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict, is

nevertheless against the great weight and preponderance of the evidence. Watson v.

State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). A factual sufficiency review

requires the reviewing court to consider all of the evidence. Marshall v. State, 210 S.W.3d

618, 625 (Tex. Crim. App. 2006). A clearly wrong and unjust verdict occurs where the



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          Although appellant fram es his issue in term s of both legal and factual sufficiency, he concedes the
evidence is legally sufficient. He states that there was som e evidence appellant should have foreseen the
m urder resulting from the conspiracy to com m it robbery.
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jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias.

Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003). The Texas Court of Criminal

Appeals in Roberts explained that a reversal for factual insufficiency cannot occur when

"the greater weight and preponderance of the evidence actually favors conviction."

Roberts, 220 S.W.3d at 524.

       A person commits the offense of capital murder if he commits murder as defined

under Section 19.02(b)(1), and intentionally commits the murder in the course of

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

(Vernon 2004). The trial court charged on the law of the parties set out in sections 7.02(a),

and (b). TEX . PENAL CODE. Ann. § 7.02(a), (b). Under section 7.02(a)(2), a person is

criminally responsible for an offense committed by 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). In a capital murder case,

the jury must find that the party-defendant intended to cause the murder. See Duke v.

State, 950 S.W.2d 424, 427 (Tex. App.–Houston [1st Dist.] 1997, pet. ref'd). Under

Section 7.02(b), a person is criminally responsible for an offense committed by another

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. TEX . PENAL CODE ANN . § 7.02(b). The court’s

charge generally reflected the law as stated.




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                                   2. The Evidence

       The appellant was tried with two other defendants, Alligood and Hammock. The

fourth member of the group, Harris, was not tried at the time and was the principal witness

for the State. Most of the crucial evidence outlined below was given by Harris, an

accomplice as a matter of law. According to Harris, the four joined together to commit car

burglaries. They carried out several burglaries together the week before the murder. All

four were again together when the group decided to begin “kick door” or home invasion

robberies.

       One of the four, Hammock, told Harris and Alligood they needed a gun in case of

resistance. All four met at his house every night for the week. Alligood, the only member

of the group old enough to purchase a firearm, went out and bought the weapon and

instructed Hammock how to use the .22 pistol. On the night of the murder, the four

gathered wearing dark clothing, gloves and a hat or something to obscure their faces.

They wore gloves “so we wouldn’t leave any prints.”         The four began the evening

committing car burglaries, stealing checks from the automobiles.          After some car

burglaries, the four stopped to see if anyone needed anything. Hammock took out the

pistol “to make sure we knew he had the gun.” Hammock was seated in the back seat of

the Honda next to appellant when he showed the weapon. Some of the group had zip tie

clips fashioned into handcuffs and a utility knife. Appellant had zip ties, like the black

bands used to bundle newspapers. At one point the group decided not to do a kick door

that night but later changed their mind and proceeded to pick out a house to burglarize.

       After cruising the neighborhood, the group randomly decided to pick the home of

Captain Gonzales. Harris and Alligood cut the power and phone lines while appellant and

Hammock, armed with the pistol, went to the back of the house and reported back that
                                         4
someone was asleep in the home. The group decided to proceed with a kick door. The

evidence conflicted as to whether appellant himself kicked in the door. He and Hammock

proceeded to the master bedroom where Captain Gonzales had been asleep. Appellant

admitted that the victim woke up and came towards the back door. Someone yelled “get

down,” then gun fire was heard by Harris. Appellant stated “That is when the first shot was

fired. . . .”

         Appellant ran to the other two. Gonzales groaned. Hammock told Gonzales to get

down again then more shots were fired. After the fourth shot, Harris heard a loud thud

coming from the kitchen. The four continued searching the residence looking for anything

valuable to steal. Appellant and Hammock returned to the master bedroom and found a

helmet, a laptop computer and cell phones. The group took the laptop, the Apache flight

helmet, cell phones, fatigues, PT gear, and military identification of Captain Gonzales.

Harris did not see appellant take anything from the Gonzales home. Alligood took the

victim’s truck keys. Appellant helped search the home and helped unload the stolen goods

at Harris’s house.

         The same night of the murder, appellant and the others returned to the Gonzales

home. They took two cases of DVD’s, some speakers and tools. Some of the items were

placed in Harris’s car and some in Gonzales’s truck, which was then also taken. The

usual agreement was to spit the stolen items equally among the four.

         Later, appellant went with Harris and followed Hammock to the lake with the victim’s

pickup which was then run into the water. The four also went to a 7-11 in the abortive

attempt to negotiate the stolen checks. Appellant was videotaped at the store at that time.

Thus, appellant was present when the group tried to negotiate the checks stolen earlier in

the evening.
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       Appellant helped move some of the stolen property from Harris’s house to

Hammock’s. Appellant drew a map for police that led to the recovery of the Captain’s truck.

Non-accomplice, Karen Trejo, saw appellant coming in and out of the house when the

stolen property was being unloaded. As far as she knew, appellant had nothing to do with

the pistol.

       The evidence showed that appellant did not go to the store when the pistol was

purchased. Also admitted into evidence was the redacted statement of appellant. In it he

admits going to the house “to steal stuff out of the house.” According to the statement, the

man woke up, came toward the back door and the first shot was fired. Appellant ran to the

car and heard three more shots. The four left and went to the 7-11 store on W. S. Young.

Appellant denied taking anything from the deceased.

       Appellant notes the record shows, and we agree, that he did not put the truck in the

lake, that Hammock was the only one with the weapon at the Captain’s home, and there

were no fingerprints on the pistol. Appellant argues, with some support from the record,

that Harris, the State’s principal witness, was impeached on a number of details concerning

the presence of hats, gloves, and face coverings, as well as his version of seeing the pistol

a few hours before the burglary. Harris failed to mention many details of his testimony to

the police in his initial statement. No fingerprints on the stolen items matched appellant.

Appellant points out that he was not present during the planning to obtain the weapon, its

purchase, or during the discussion on how to use it. However, he was present before the

others returned a second time to purchase the pistol. Appellant was also seated next to

Hammock in the Honda when Hammock showed the pistol to the group shortly before the

murder.


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       Hammock, Alligood, and Harris all denied they were the person who actually shot

Gonzales. Statements of the three defendants were admitted into evidence in redacted

form. The jury was instructed that the redacted statements could not be used against

appellant on the question of his guilt.

       Appellant called Corina Martinez, who testified she knew Harris well and that he told

her he had a gun. She stated that Harris and Hammock had a gun. Co-defendant

Hammock’s father testified appellant came to his house, and he thought appellant was

hiding something under his shirt. Appellant was said to have then gone to Hammock’s

room for about 20 seconds and left, just before police arrived and searched the home

looking for the weapon. The pistol was then found under Hammock’s mattress.

                                   3. Discussion

       Appellant first argues that under the single count of capital murder by intentionally

causing the death of an individual, by shooting him with a firearm, in the course of

committing or attempting to commit the offense of robbery, only two theories would allow

a conviction of appellant of capital murder. One is the law of parties under penal code

section 7.02(a). See TEX . PENAL CODE Ann. § 7.02(a). The other is when 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 carry out of the conspiracy.

Id. § 7.02 (b).

       Appellant does not deny there is sufficient evidence of an intentional killing of

Gonzales in Bell County on June 3, 2005, in the course of a robbery. Further, appellant

states that Hammock, Alligood, and Harris conspired to commit a robbery and that each
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of them had reason to believe that one of the three possessed a handgun that they

conspired to obtain for the express purpose of use in the burglary they intended to commit.

Appellant further argues that, though there is some evidence, however weak, that appellant

should have foreseen the murder as a result of carrying out the conspiracy to commit

burglary or robbery, the evidence is factually insufficient to support a jury finding that he

acted as a party to the offense under section (a) or (b). Id. § 7.02(a), (b).

       Under section 7.02(a), appellant argues it is necessary to prove the charged offense

was intended by appellant. See TEX . PENAL CODE ANN . § 7.02(a)(2).             According to

appellant, there is insufficient evidence that he intended to promote or assist the murder.

Even if this were true, the jury was also charged under section (b). Id. § 7.02(b). Section

(b) provides that if in an attempt to carry out a conspiracy to commit one felony, another

felony is committed, all conspirators are guilty of the felony actually committed, even

without intent, if the offense was committed in the furtherance of the unlawful purpose and

was one that should have been anticipated as a result of carrying out the conspiracy. Id.

       The testimony of Harris outlined above established a complete case of capital

murder during the commission of a robbery. The four carried out multiple robberies. They

then decided to escalate their robberies to “kick door” home entries. A weapon was

purchased by Alligood in case they faced resistance. The four were aware that Captain

Gonzales was asleep in his home and might resist. They proceeded anyway, in the dark

of night, with a loaded handgun, kicked in the door and shot Gonzales four times.

Appellant was present when the group decided to escalate their crimes to night home

invasions, participated in several robberies with the group both before and on the night

of the murder, helped with the random selection of the victims’s home, was seated next to

Hammock when he showed the weapon in the car before the kick door, and the group
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confirmed that Hammock had the pistol before entering the home when they did an

equipment check. Appellant performed numerous acts in furtherance of the conspiracy to

rob Captain Gonzales’ home, including either kicking in the back door, or accompanying

the person who kicked in the door. Appellant accompanied Hammock, who was armed

with the murder weapon, and the two went into the deceased’s bedroom with zip ties to

subdue Gonzales. Appellant again returned to the master bedroom after the murder and

searched for items to steal.

       While it is true that Harris was an accomplice, his testimony was amply corroborated

by appellant’s own statement, the testimony of Martinez, and the video tape, among other

evidence. See Cathey v. State, 992 S.W.2d 460, 462. (Tex. Crim. App. 1999) (if the

combined weight of the non-accomplice evidence tends to connect the defendant to the

offense, the requirement of TEX . CODE CRIM . PROC. ART . 38.14 has been fulfilled).

       Appellant cites Vega v. State, 198 S.W.3d 819, 826 (Tex. App.–Corpus Christi, 2006

(pet. granted in part) (Vega did nothing to aid, assist, encourage, solicit, direct or attempt

to aid the shooters; culpability as a party under section 7.02(a)(2) of the penal code is

factually insufficient). He argues that in Vega, the defendant helped plan a robbery and

even assisted in hiding the murder weapons afterward. However, as the State argues,

Vega worked on a plan for some men from Mexico to rob the victim. Vega stayed behind

and told his girlfriend that they were suppose to scare the guy, not kill him.

       We observe that Vega does not address penal code section 7.02(b) under which

intent to commit murder is not required. TEX . PENAL CODE ANN . 7.02(b), Vega is further

factually distinguishable because, unlike Vega, appellant was involved in a conspiracy

involving all four participants, all agreed to the kick door escalation, appellant was at the

scene and participated in the robbery, and appellant knew there was a weapon. The group
                                            9
also agreed to subdue the sleeping man and made preparations for resistance from the

homeowner. The required intent to rob was admitted by appellant himself. See id.

       Appellant also cites Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim. App.

2005) (the overwhelming weight of the evidence mitigates against the conclusion that

Vodochodsky solicited, encouraged, directed, aided or attempted to aid Engleton in

committing the offense; all the evidence that could legally support a rational jury's

conclusion is nevertheless so weak that confidence in the jury's verdict is undermined).

Again in Vodockodsky, section 7.02(b) did not apply and the State relied upon section

7.02(a). TEX . PENAL CODE ANN . § 7.02(a), (b). There was no underlying conspiracy to do

an unlawful act. Vodockodsky involved a complicated factual scenario, and the defendant

did go with the shooter to buy ammo, bailed him out of jail, and knew he was over the

edge. However, the overwhelming weight of the evidence indicated that Vodockodsky did

not solicit, encourage, direct, aid or attempt to aid the shooter in the commission of capital

murder. Here, appellant actively participated in the conspiracy to rob Gonzales. No intent

to murder was required. And appellant’s intent to commit robbery was admitted. Appellant

and his co-conspirators anticipated or should have anticipated the consequences of kicking

down the back door of a sleeping man at 1:30 a.m. when they went in armed with a deadly

weapon. They prepared for resistance and agreed Gonzales must be subdued.

       After seeing Captain Gonzales asleep, the four were at the back of the house

discussing the situation.   “We were figuring out whether or not we actually wanted to

proceed with burglarizing the house, sir.” The State asked: “Okay. And who decided, if

anything, what to do?” Harris responded: “It was a group decision, sir.” The group decided

to do a kick door. Harris and Alligood went up the left side of the house. Appellant and

Hammock were assigned to go into the bedroom and subdue Captain Gonzales and
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search the room. This they did, resulting in the death of the Captain.

       Appellant's own statement, which showed his participation in the decedent's robbery

and his presence at the murder scene, established that he was, at a minimum, a party to

capital murder. See Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). When

the trial court's charge authorizes the jury to convict on more than one theory, as it did in

this case, the verdict of guilt will be upheld if the evidence is sufficient on any of the

theories. Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007). Pursuant to Texas

Penal Code sections 7.01 and 7.02, an individual can be convicted as a party to an offense

if that offense was committed by his own conduct, by the conduct of another for which he

is criminally responsible, or both. Id. (citing TEX . PENAL CODE ANN . § 7.01).

                                     4. Conclusion

       Viewing the verdict of the jury in a neutral light, it is supported by factually sufficient

evidence. See Johnson, 23 S.W.3d at 7. The conviction of capital murder is not contrary

to the great weight of the evidence nor is it so weak as to be clearly wrong and manifestly

unjust. See Roberts, 220 S.W.3d at 524. The verdict does not demonstrate that it is

unjust, shocks the conscience, or demonstrates bias. See Sells, 121 S.W.3d at 754. We

affirm the judgment of conviction for capital murder and the sentence of the trial court.


                                                                     DON WITTIG,
                                                                     Justice

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

Memorandum Opinion delivered and
filed this the 2nd day of April, 2009.




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