Affirmed and Memorandum Opinion filed February 21, 2019.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00419-CR

                            JASON LARA, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 240th District Court
                            Fort Bend County, Texas
                     Trial Court Cause No. 15-DCR-068729

                MEMORANDUM                        OPINION


      Appellant Jason Lara appeals his murder conviction, arguing that (1) there is
insufficient evidence to support his conviction and (2) the trial court abused its
discretion by allowing the State to introduce a witness’s prior consistent statement.
We affirm.

                                  BACKGROUND

      Appellant was charged with the murder of complainant Cristhian Cardozo. A
four-day jury trial was held on May 2, 2017, at which numerous witnesses testified
regarding the circumstances of complainant’s murder. The jury found appellant
guilty.

      Complainant’s wife, Miriam Gigena-Cardozo, testified that she, complainant,
their 14-year old son [“C.C.”] and nine-year old daughter [“L.C.”] arrived at a
Walmart at 6:18 p.m. on December 10, 2014. Complainant did not go into the store
with his family but stayed behind in their truck because he was tired. Shortly before
7:00 p.m., Gigena-Cardozo was still shopping with her children in the men’s section
when a young man in red shorts “came near [them] and then he starting [sic] looking
at [them] and he started insulting [them] without any reason.” She stated that another
young man was behind the man in the red shorts, but he did not say anything.

      Later, when the Cardozos exited the store, appellant approached them along
with two of his friends (Antonio De La Cruz and Jerrod Dickerson). De La Cruz
testified (and video footage confirmed) that (1) he wore red shorts and a camouflage
jacket, (2) Dickerson wore a blue hoodie and black shorts, and (3) appellant wore
long black pants and a black shirt with a white emblem. The Cardozos, appellant,
De La Cruz, and Dickerson then engaged in a physical altercation; it ended with four
to five gunshots and a mortally wounded complainant.

      De La Cruz testified that (1) appellant later stated: “I got him. I shot him and
I saw him . . . when he screamed,” and (2) neither he nor Dickerson shot anyone. He
was interviewed by the police before he hired an attorney and the videotaped
interview was played for the jury; the video confirmed that De La Cruz told police
that appellant had admitted to shooting complainant. Dickerson also testified that
(1) appellant admitted shooting complainant, and (2) neither he nor De La Cruz shot
complainant.

      Adrian Nunezdevillavicencio also witnessed the altercation and testified at
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trial. He testified that (1) the African-American man wore a blue hoodie, (2) one of
the Hispanic men wore a black hoodie, and (3) he saw the man in the black hoodie
“[p]ut a hoodie over his head” and then fire four to five shots with his revolver. He
identified appellant as the shooter wearing the black hoodie on a still photo.

         Tabitha Franklin testified that (1) she observed an altercation next to her
vehicle, (2) she saw a father and son fighting with a Hispanic man wearing red shorts
and an African-American man wearing a blue shirt, (3) when the man in the red
shorts knocked the father on the ground, a man in a black hoodie approached and
shot the father, (4) the gunman had a black hoodie over his head, and (5) she “saw
the fire from the gun coming out” as the gunman shot the father while “standing over
him.” Franklin was certain that neither the man in the red shorts nor the man in the
blue shirt shot the father; instead, she stated that the shooter was the man with a
black hoodie over his head.

         Walmart employee, Gwendolyn Williams, also witnessed the altercation and
the shooting. She testified that she picked appellant as the shooter in a photo array
when she went to the police station a few days after the shooting. Williams testified
that her memory was “still pretty fresh” at the time she picked appellant in the photo
array.

         During the investigation, Detective Preston Ousley interviewed De La Cruz
and Dickerson; both denied shooting complainant and stated appellant told them he
shot complainant. Detective Ousley also spoke to Williams; he showed her a photo
array and she identified appellant as the shooter. Detective Ousley also showed
witnesses Nunezdevillavicencio, Williams, and Franklin video footage of appellant,
De La Cruz, and Dickerson. The witnesses all were “consistent with the clothing
description of what the shooter was wearing” and identified appellant as the shooter
wearing dark pants and a black hoodie.

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       The State also presented testimony from Detective Linda Garcia of the
Stafford Police Department, who assisted Detective Ousley in the investigation of
complainant’s shooting. Detective Garcia testified that the only person wearing a
black hoodie was appellant and that multiple witnesses identified the shooter as
wearing a black hoodie.

       After hearing the evidence presented, the jury found appellant guilty of
murder and sentenced him to life imprisonment. Appellant filed a timely appeal.

                                          ANALYSIS

I.     Sufficiency of the Evidence

       Appellant contends in his second issue that there is insufficient evidence to
support his conviction for murder because the evidence is insufficient to establish
that appellant shot complainant and had the requisite culpable mental state.1

       A.     Standard of Review

       The legal sufficiency standard of review is the only standard applied to
determine whether the evidence is sufficient to support each element of a criminal
offense that the State is required to prove beyond a reasonable doubt. Temple v.
State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (“[T]his Court now applies only
one standard ‘to evaluate whether the evidence is sufficient to support a criminal
conviction beyond a reasonable doubt: legal sufficiency.’”). For this review, we
consider the combined and cumulative force of all admitted evidence and any
reasonable inferences therefrom in the light most favorable to the verdict to

1
  We address appellant’s sufficiency issue first because, if it is meritorious, we would render a
judgment of acquittal rather than reverse and remand. Owens v. State, 135 S.W.3d 302, 305 (Tex.
App.—Houston [14th Dist.] 2004, no pet.) (legal sufficiency challenge must be addressed first
because, if evidence is insufficient, reviewing court must render judgment of acquittal).


                                               4
determine whether the jury was rationally justified in its decision. Johnson v. State,
509 S.W.3d 320, 322 (Tex. Crim. App. 2017). Direct evidence and circumstantial
evidence are equally probative; circumstantial evidence alone may be sufficient to
uphold a conviction so long as the cumulative force of all the incriminating
circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d
805, 809 (Tex. Crim. App. 2015).

      The jury is the sole judge of credibility and the weight to be attached to
witnesses’ testimony. Temple, 390 S.W.3d at 360. The jury may accept one version
of the facts and reject another, and it may reject any part of a witness’s testimony.
Kelley v. State, 429 S.W.3d 865, 872 (Tex. App.—Houston [14th Dist.] 2014, pet.
ref’d). We may not substitute our judgment for that of the jury and must defer to the
jury’s responsibility to fairly resolve or reconcile conflicts in the evidence. Isassi v.
State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

      B.     The evidence is sufficient to establish appellant shot complainant

      As applicable in this case, a person commits murder if he intentionally or
knowingly causes the death of an individual.           See Tex. Penal Code Ann. §
19.02(b)(1) (Vernon 2018). The charge also instructed jurors on the law regarding
accomplice witness testimony and that they could not convict appellant unless (1)
they believed De La Cruz and Dickerson were not accomplices; or (2) they believed
De La Cruz’s and Dickerson’s testimony and other evidence tended to connect
appellant to the charged offense.

      As a matter of Texas law, “[a] conviction cannot be had upon the testimony
of an accomplice unless corroborated by other evidence tending to connect the
defendant with the offense committed; and the corroboration is not sufficient if it
merely shows the commission of the offense.” See Tex. Code Crim. Proc. Ann. art.
38.14 (Vernon 2018); Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007)
                                           5
(accomplice witness testimony “must be corroborated by independent evidence
tending to connect the accused with the crime”). When evaluating the sufficiency
of corroboration evidence under the accomplice witness rule, we eliminate the
accomplice testimony from consideration and then examine the remaining portions
of the record to see if there is any evidence that tends to connect the defendant with
the commission of the crime. Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim.
App. 2008). Corroborative evidence need not establish a defendant’s guilt or
directly link him to the charged offense; it is sufficient if it tends to connect him to
the offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993); Nolley
v. State, 5 S.W.3d 850, 853 (Tex. App.—Houston [14th Dist.] 1999, no pet.).

      Appellant contends the “evidence is insufficient to show appellant was the
actual shooter” because the “conflicts in witness testimony were vast” and De La
Cruz had a “clear motive” to shift the blame to appellant. Contrary to appellant’s
assertion, the record contains sufficient evidence to establish that appellant shot
complainant even when eliminating De La Cruz’s and Dickerson’s testimony.

      Several independent witnesses testified that they saw appellant shoot
complainant in front of the Walmart store in Stafford at approximately 7:00 p.m. on
December 10, 2014. Evidence in the form of witness testimony and video footage
established that (1) appellant was the only man who wore a black hoodie and black
pants at the scene, (2) Dickerson wore a blue hoodie and black shorts, and (3) De La
Cruz wore a camouflage jacket with red shorts.

       Nunezdevillavicencio testified that the shooter wore a black hoodie.
Nunezdevillavicencio saw the man in the black hoodie “[p]ut a hoodie over his head”
and fire four to five shots with his revolver at complainant. He testified he saw
appellant with a revolver in his hand and identified appellant at trial as the shooter
who wore a black hoodie.

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      Franklin also testified that she observed De La Cruz and Dickerson fight with
C.C. and complainant up close while she sat in her car in front of the Walmart store.
She testified that a man in a black hoodie approached and shot complainant when
complainant was knocked to the ground by De La Cruz. She testified that the
gunman had a black hoodie over his head and she “saw the fire from the gun coming
out” as he shot complainant while “standing over him.” Franklin was sure that
neither De La Cruz nor Dickerson shot complainant; instead, she testified that the
“shooter had on a black hoodie, which was over his head.” Williams also testified
that she observed the gunman firing shots at complainant, who was laying on the
ground. Williams stated that she picked appellant as complainant’s shooter in a
photo array when she went to the police station. She stated that her memory was
“still pretty fresh” when she identified appellant as the shooter.

      Additionally, Detective Ousley testified that he spoke with Franklin,
Williams, and Nunezdevillavicencio during the investigation and all three witnesses
were “consistent with the clothing description of what the shooter was wearing” and
identified appellant as the shooter wearing dark pants and a black hoodie. Detective
Garcia also testified that during the investigation Nunezdevillavicencio, Franklin,
and Williams identified appellant as the shooter on video surveillance footage.

      Considering all the evidence and any reasonable inferences therefrom (while
excluding the testimony of De La Cruz and Dickerson), we conclude that the jury as
the sole judge of credibility and weight to be attached to testimony reasonably could
have determined that appellant shot complainant. See Johnson, 509 S.W.3d at 322;
see also Ramsey, 473 S.W.3d at 809, and Temple, 390 S.W.3d at 360.

      C.     The evidence is sufficient to establish appellant’s mental state

      We next address appellant’s contention that there is insufficient evidence he
“possessed the requisite culpable mental state to support a conviction for murder.”
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Appellant argues the evidence failed to prove he intentionally or knowingly caused
complainant’s death because he made no express verbal threats against complainant
and the medical examiner testified that the gun was not fired “at point-blank range”.

      As applicable in this case, “[a] person acts intentionally, or with intent, with
respect to the nature of his conduct or to a result of his conduct when it is his
conscious objective or desire to engage in the conduct or cause the result.” Tex.
Penal Code Ann. § 6.03(a) (Vernon 2018). “A person acts knowingly, or with
knowledge, with respect to a result of his conduct when he is aware that his conduct
is reasonably certain to cause the result.” Id. § 6.03(b) (Vernon 2018).

      Intent and knowledge are fact questions for the jury, which are almost always
proven through evidence of the circumstances surrounding the crime. Childs v.
State, 21 S.W.3d 631, 635 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). Intent
to kill may be inferred from acts, words, and conduct of the defendant. See Patrick
v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995) (en banc). Evidence of
culpability includes a defendant’s flight from the scene of the crime. See Clayton v.
State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007).

      Also, intent to kill may be inferred from the use of a deadly weapon. Cavazos
v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012); Williams v. State, 502 S.W.3d
262, 270 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). A revolver is a firearm
and a deadly weapon per se. See Tex. Penal Code Ann. § 1.07(a)(17)(A) (Vernon
2018); see also Gomez v. State, 685 S.W.2d 333, 336 (Tex. Crim. App. 1985) (en
banc) (holding that a revolver is a firearm, and a firearm is a deadly weapon per se),
and Williams, 502 S.W.3d at 270.

      Therefore, the jury in this case was entitled to infer intent to kill from
appellant’s use of a deadly weapon, his revolver, “‘unless in the manner of its use it
is reasonably apparent that death . . . could not result.’” See Vuong v. State, 830
                                          8
S.W.2d 929, 934 (Tex. Crim. App. 1992) (en banc) (quoting Godsey v. State, 719
S.W.2d 578, 580-81 (Tex. Crim. App. 1986)); see also Williams, 502 S.W.3d at 270,
and Arnold v. State, 234 S.W.3d 664, 672 (Tex. App.—Houston [14th Dist.] 2007,
no pet.). Further, “‘[i]f a deadly weapon is used in a deadly manner, the inference
is almost conclusive that the [defendant intended] to kill.’” Adanandus v. State, 866
S.W.2d 210, 215 (Tex. Crim. App. 1993) (alterations in original) (quoting Godsey,
719 S.W.2d at 580-81).

      Here, the testimony of the eyewitnesses, that appellant pointed a loaded gun
at complainant and then shot him, sufficiently supports a conclusion that appellant
intentionally or knowingly caused complainant’s death. Nunezdevillavicencio
testified that appellant fired four to five shots at complainant and then fled the scene
in a car. Franklin testified that appellant shot complainant after he was knocked to
the ground and then ran away.         Williams stated that appellant fired shots at
complainant as he was laying on the ground and then fled the scene. Finally, medical
examiner Dr. Dana Hopson testified that complainant suffered gunshot wounds to
the head and torso. Dr. Hopson opined that the shots were fired from a distance of
approximately two to three feet. Although appellant may not have shot complainant
“at point-blank range” as he claims, he nonetheless shot complainant numerous
times from a close distance.

      The witnesses’ testimony supports a conclusion that appellant used a deadly
weapon in a deadly manner intended to cause complainant’s death. See Vuong, 830
S.W.2d at 934; Adanandus, 866 S.W.2d at 215. The jury could find beyond a
reasonable doubt from this testimony that appellant had a conscious objective or
desire to cause death or was aware that his conduct was reasonably certain to cause
death. See Adanandus, 866 S.W.2d at 215; see also Childs, 21 S.W.3d at 635. An
additional indicator of appellant’s guilt is his flight from the crime scene. See

                                           9
Clayton, 235 S.W.3d at 780. Viewing the evidence in the light most favorable to the
verdict, we conclude the evidence is legally sufficient to support appellant’s murder
conviction. Accordingly, we overrule appellant’s second issue.

II.   Admission of Evidence

      Appellant argues in his first issue that the trial court abused its discretion by
allowing the State to play a portion of De La Cruz’s videotaped police interview in
which he stated that appellant shot complainant. Appellant argues that De La Cruz
already testified at trial that appellant shot complainant and the prior consistent
statement De La Cruz made during his police interview was inadmissible because
“there was no express or implied charge against De La Cruz of recent fabrication.”

      Appellant points to the following exchange as proof that the trial court allowed
the State to play a portion of De La Cruz’s videotaped police interview for the jury
over appellant’s trial counsel’s objection:

      [THE STATE]: We’re going to offer State’s Exhibit 70. For purposes
      of the record, we have a little short redacted version that we’re going to
      introduce for purposes of the jury, just the part about him saying he
      already made the statement about him having the gun and shooting, all
      that prior to any deal with anybody or anything of that nature, as a prior
      consistent statement. Although they made the copy, it’s kind of — it’s
      a little rough on the copy. We could play the portion from here and just
      introduce the other one. It’s up to you.
      THE COURT: Well, it’s not just up to me.
      [THE STATE]: And up to [defense counsel].
      THE COURT: So your thoughts?
      [DEFENSE COUNSEL]: I would object to the whole deal.
      THE COURT: So you want the redacted portion?
      [DEFENSE COUNSEL]: Just the portion that relates to the questions.
      THE COURT: Okay. Then we’re doing that.
      [DEFENSE COUNSEL]: Okay.
                                          10
      THE COURT: And I will also make the finding that this is offered as
      a prior consistent statement and that the case law element of that falls
      — and I see is the motive portion of it — is the use immunity agreement
      the date of that as opposed to this statement and it occurs before that.
      [THE STATE]: Yes, it occurs way before that.
      However, appellant does not present the complete exchange that occurred at
trial. Specifically, Appellant omits the following:

      THE COURT: All right. And what is this marked as?
      [THE STATE]: It’s going to be marked as 70 and 70-A. 70’s for the
      record and 70-A is to go back to the jury.
      THE COURT: I’m not sure that’s what [defense counsel] is saying. I
      think what he’s saying is that the only part that he doesn’t object to is
      the redacted version.
      [THE STATE]: Yes, this part’s not going to the jury. I’m just going to
      put it into the record so that they know that the total —
      THE COURT: Okay. So that one I want you to mark as a Court exhibit.
      That way it stays in its own space.
      [THE STATE]: And do you want us to play it off of this one so that
      you can hear it better? Do you know what I’m saying?
      THE COURT: I understand. Do you have any objection to playing just
      that selection of it off of the higher quality audio?
      [DEFENSE COUNSEL]: No, no objection.
      THE COURT: Just be sure that you only get the part that is in the actual
      exhibit. And it’s 70 and Court’s 70 are the two, right?
      [THE STATE]: Court’s 70 is for the record and we’re offering 70-A
      as that goes to the jury.
      THE COURT: Okay. 70-A is admitted without objection. Court’s 70
      is for purpose for the record only and is not to be taken back to the jury.
      Appellant also omits the following exchange, which occurred immediately
before the State played the redacted version of De La Cruz’s police interview (State’s
Exhibit 70-A) for the jury:

      [THE STATE]: Judge, if I can have a chance to just check and see if
                                          11
      they’re ready?
      THE COURT: Okay. Is that marked?
      [THE STATE]: It is, Judge, 70-A. And we’d offer State’s Exhibit 70-
      A.
      (State’s Exhibit No. 70-A offered.)
      THE COURT: Any objection?
      [DEFENSE COUNSEL]: No, Your Honor.
      THE COURT: All right. 70-A is in . . . .
      (State’s Exhibit No. 70-A admitted.)
      (State’s Exhibit 70-A published.)
      An appellant must preserve error based on the erroneous admission of
evidence in the trial court by making a specific and timely objection and obtaining a
ruling from the trial court. Miles v. State, 468 S.W.3d 719, 727 (Tex. App.—
Houston [14th Dist.] 2015), aff’d on other grounds, 506 S.W.3d 485 (Tex. Crim.
App. 2016); see also Tex. R. App. P. 33.1(a), and Merrit v. State, 529 S.W.3d 549,
556 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d). An appellant must object
each time evidence is offered unless the appellant receives a running objection or
requests a hearing outside the presence of the jury. Merrit, 529 S.W.3d at 556; Miles,
468 S.W.3d at 726.

      Here, appellant objected only to the State playing De La Cruz’s entire police
interview for the jury; said interview was never played in its entirety. However,
appellant did not object to a redacted version of De La Cruz’s police interview being
played for the jury — State’s Exhibit 70-A. In fact, when the State offered the
redacted police interview, appellant’s trial counsel stated he had no objection to its
admission. Because trial counsel did not object to the admission of State’s Exhibit
70-A, appellant failed to preserve any complaint on appeal that the trial court abused
its discretion by allowing the State to play De La Cruz’s redacted police interview
for the jury. See Tex. R. App. P. 33.1(a); Holmes v. State, 248 S.W.3d 194, 201
                                          12
(Tex. Crim. App. 2008) (“a defendant waives any complaint on appeal concerning
the admissibility of evidence when he affirmatively states, ‘No objection,’ at the
time the evidence is offered”). Accordingly, we overrule appellant’s first issue.

                                   CONCLUSION

      We affirm the trial court’s judgment.




                                              /s/   Meagan Hassan
                                                    Justice


Do Not Publish — Tex. R. App. P. 47.2(b).
Panel consist of Justices Christopher, Zimmerer, and Hassan.




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