Opinion issued February 28, 2013




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-11-00902-CR
                           ———————————
                      RAMIRO MARTINEZ, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 182nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1256679



                         MEMORANDUM OPINION

      Appellant, Ramiro Martinez, was charged by indictment with capital

murder. 1 Appellant pleaded not guilty. A jury found appellant guilty as charged.


1
      See TEX. PENAL CODE ANN. §§ 19.02(b)(1), 19.03(a)(2) (Vernon 2011).
As the State did not seek the death penalty, the trial court sentenced appellant to

life imprisonment.     In three issues on appeal, appellant argues (1) there is

insufficient non-accomplice evidence tending to connect him with the offense to

corroborate the accomplice testimony and (2) the evidence is insufficient to

establish his guilt beyond a reasonable doubt.

      We affirm.

                                    Background

      Shortly after midnight on July 1, 2009, Derrick Godfrey, complainant, was

killed by a shot in the head with a shotgun in an area in Houston, Texas known as

Cloverleaf. An initial investigation did not identify any suspects. No physical

evidence implicated any particular person’s involvement. A few months later,

however, investigators with the Harris County Sheriff’s Office identified appellant,

Jonathan Rivera, and Jonathan Rodriguez as suspects in the case.

      After multiple interviews with Harris County Sheriff’s Office investigators,

Rivera and Rodriguez admitted to their involvement in Godfrey’s murder. Both

acknowledged the other’s involvement in the crime, and both also identified

appellant as the shooter. Appellant, Rivera, and Rodriguez were charged with

capital murder. Rivera was 14 at the time of the offense. Rodriguez and appellant

were 16. All three were certified to stand trial as an adult.




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      Shortly before appellant’s trial, the State entered into an agreement with

Rivera and Rodriguez. In exchange for their truthful testimony at appellant’s trial,

the State reduced the charges against them to aggravated robbery. Rivera and

Rodriguez pleaded guilty to the lesser offense and the determination of punishment

would be later submitted to the trial court without an agreed recommendation.

      At trial, Rivera testified that, on the evening of June 30, 2009, he had been at

appellant’s house with appellant, Rodriguez, and Israel Tanguma. Appellant lived

in Cloverleaf, a short distance from where Godfrey was shot. That evening, the

four boys were drinking liquor and smoking marijuana. They eventually ran out of

one or both of those and decided to rob someone in order to buy more. Appellant

obtained two shotguns and gave one to Rodriguez. Rivera somehow obtained a .38

revolver. Tanguma did not have a weapon.

      The boys left the house and headed for a long grassy area, known as the

“green mile,” which ran along a series of dead end streets in the neighborhood.

That area was preferred because it was not well lit, making it harder for anyone to

identify them. After reaching the green mile, Tanguma left the group. As the boys

were walking along the green mile, they saw Godfrey. Godfrey mistook them for

friends of his, calling out, “Is that my nigger, T.Y.?” The boys played along,

luring him to a darker area of the green mile.




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      When he reached them, Godfrey realized his mistake. Appellant pointed his

shotgun at Godfrey and told him to get on the ground. Godfrey complied, getting

onto his knees. Godfrey insisted he did not have anything. Rodriguez hit him with

the back of his shotgun, and Godfrey fell to the ground. Appellant told Rivera to

check his pockets. Rivera complied, finding $40. Appellant then told Rivera to

leave. Rivera ran off in the direction from where they had come. When he was

two blocks away, he heard a gunshot. Rivera ran to Tanguma’s grandmother’s

house, which was also in the neighborhood. Rivera spent the night there.

      The next day, the four boys spent the stolen money buying food from

McDonald’s and buying marijuana. At one point, Rivera asked appellant if he shot

the man they robbed. Appellant told him the less he knew the better.

      Rodriguez’s testimony was similar. He agreed that the four boys had been

together that evening, but denied smoking marijuana or drinking alcohol. For an

unidentified reason, the boys decided to rob someone.         Appellant produced

weapons. Rivera had a handgun and Rodriguez and appellant had shotguns.

      Appellant, Rivera, and Rodriguez walked to the green mile. 2 There, they

saw Godfrey, who mistook one of them for a friend of his. When Godfrey reached

them at the green mile and realized his mistake, appellant ordered Godfrey to get

on the ground. Godfrey complied. Rodriguez searched one pocket while Rivera

2
      Rodriguez did not mention Tanguma or any involvement he may have had once
      they left appellant’s house.
                                        4
searched the other. Rodriguez did not find any money and did not know whether

Rivera found any.

      Appellant told Rivera to run, and Rivera did. Appellant then told Rodriguez

in Spanish to back up because he was going to shoot Godfrey. Rodriguez backed

up and appellant shot Godfrey. The two boys ran from the scene. Rodriguez ran

to Tanguma’s grandmother’s house to hide the shotgun, but he did not go inside

the house. He then ran to his home, a short distance from appellant’s house.

      Appellant did not testify at trial.    The State did, however, introduce a

recorded interview between him and two investigators from the Houston Police

Department around the time that he, Rivera, and Rodriguez were arrested. In the

interview, appellant admitted to being involved in a robbery with a man known as

Rafael Leon. Leon had died between the commission of the offense and the time

of appellant’s statement. Officer A. Brown stated at the start of the interview that,

before the interview was recorded, appellant had acknowledged his participation in

the robbery.

      Brown: . . . you brought up the fact that you know and explained what
           kind of person Rafael was uh that uh y’all had done a robbery.

      [Appellant]: Yes sir.

      Brown: About three or four blocks from your house back in back
           sometime ago in the summer.

      [Appellant]: Yes sir.


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      Brown: . . . . And you mentioned to Sergeant Harris and us that um
           that and we actually know about this case we found it happened
           back on July 1, 2009 you explained it was a black guy that used
           to sling I guess dope.

      [Appellant]: Yeah.

      Appellant explained that Leon was carrying a shotgun. He admitted other

people were involved in the robbery, but would not identify who they were. He

said they were on the green mile when they saw someone else there, too. They ran

up to the man, and Leon pointed the shotgun at him. Appellant searched the man,

and when he was done, Leon told him to move back and then shot the man.

Appellant then ran from the scene.

      Also at trial, the State submitted into evidence a map drawn by appellant of

where the robbery he described took place. It was in the same approximate area

where Godfrey was killed.

                            Sufficiency of the Evidence

      In three issues, appellant argues (1) there is insufficient non-accomplice

evidence tending to connect him with the offense to corroborate the accomplice

testimony and (2) the evidence is insufficient to establish his guilt beyond a

reasonable doubt.

A.    Standard of Review

      This Court reviews sufficiency-of-the-evidence challenges applying the

same standard of review, regardless of whether an appellant presents the challenge

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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 Ervin, 331 S.W.3d at 54. Pursuant to this standard,

evidence is insufficient to support a conviction if, considering all the record

evidence in the light most favorable to the 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

                                         7
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

viewing 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 establish guilt.

Clayton, 235 S.W.3d at 778. Finally, the “cumulative force” of all the

circumstantial evidence can be sufficient for a jury to find the accused guilty

beyond a reasonable doubt. See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim.

App. 2006).

B.    Analysis

      In his second issue, appellant argues that there was insufficient non-

accomplice evidence to corroborate Rodriguez’s and Rivera’s testimony.           “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.” TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005).

      “The test for sufficient corroboration is to eliminate from consideration the

accomplice testimony and then examine the other inculpatory evidence to ascertain


                                         8
whether the remaining evidence tends to connect the defendant with the offense.”

McDuff v. State, 939 S.W.2d 607, 612 (Tex. Crim. App. 1997). In conducting this

sufficiency analysis, we disregard all accomplice evidence and determine whether

the other inculpatory facts and circumstances in evidence tend to connect appellant

to the offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993). The

corroborating evidence under 38.14 need not be sufficient, standing alone, to prove

beyond a reasonable doubt that the appellant committed the offense. Joubert v.

State, 235 S.W.3d 729, 731 (Tex. Crim. App. 2007). “All that is required is that

there is some non-accomplice evidence tending to connect the defendant to the

offense.” Id. (emphasis in original).

      The offense at issue in this appeal is capital murder. A person commits

capital murder if he intentionally commits murder in the course of committing or

attempting to commit robbery. TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon

2011). For purposes of capital murder, murder means “intentionally or knowingly

caus[ing] the death of an individual.” Id. § 19.02(b)(1) (Vernon 2011). As it

applies here, robbery means intentionally or knowingly threatening or placing

another in fear of imminent bodily injury or death in the course of committing theft

and with the intent to obtain or maintain control of the property. Id. § 29.02(a)(2)

(Vernon 2011). Theft means “unlawfully appropriat[ing] property with intent to

deprive the owner of property.” Id. § 31.03(a) (Vernon 2011).

                                         9
      It is undisputed that Rodriguez and Rivera, who participated in the

commission of the offense and who testified against appellant at trial, were

accomplice witnesses. It is also undeniable that there is no physical evidence

linking appellant to the commission of the offense.             There is, however,

corroborating evidence in the form of appellant’s recorded interview.          In his

interview, appellant admitted being involved in the offense. He identified Leon as

the shooter, but stated he was involved in searching the man they were robbing for

money.

      Appellant argues that nothing in his interview links him to the particular

charged offense because he never stated the date of the offense; did not identify

Rodriguez, Rivera, or even Tanguma in the commission of the offense; and did not

identify Godfrey as the victim of the capital murder in which appellant was

involved. We disagree that appellant failed to sufficiently identify his involvement

in the commission of the crime for which he was charged.

      At the start of the interview, Officer Brown explained that they were

inquiring about a robbery and murder that occurred three or four blocks from his

house, that occurred on July 1, 2009, and that was committed against a black man.

Appellant acknowledged this and discussed his involvement in it. The fact that

appellant did not specifically state the date of the offense or the race of the victim




                                         10
does not change the fact that appellant acknowledged the event about which he was

being interviewed.

      Moreover, appellant specifically acknowledged the location of the offense,

going so far as to draw a map of the location of the offense.              Appellant’s

description of the location was the same location where Godfrey was killed.

Additionally, while appellant did not specifically identify Rodriguez’s and

Rivera’s involvement in the offense, he did state that people other than him and

Leon were involved.

      We hold appellant’s police interview, which was admitted into evidence at

trial, was sufficient to tend to connect appellant to the offense. Accordingly, his

conviction could be based on Rodriguez’s and Rivera’s accomplice testimony. See

TEX. CODE CRIM. PROC. ANN. art. 38.14.

      We overrule appellant’s second issue.

      In his first issue, appellant argues the evidence is insufficient to establish his

guilt beyond a reasonable doubt. We disagree.

      The evidence at trial established that appellant went out of his house with

Rodriguez and Rivera with the intent to rob someone. When they encountered

Godfrey, appellant pointed a gun at him, ordered him to the ground, and told

Rivera to search Godfrey. Rivera found $40. Appellant told Rivera to leave and

then told Rodriguez to back up, explaining in Spanish that he intended to shoot

                                          11
Godfrey. Rodriguez backed up and appellant shot Godfrey in the head, killing him

instantly. In his statement to police, appellant acknowledged being involved in a

robbery on the night in question, and drew a map identifying the correct location

where Godfrey had been killed. Appellant also acknowledged that the person

being robbed was killed during the robbery.

      Under the law of parties, appellant is culpable for the theft of $40. See TEX.

PENAL CODE ANN. § 31.03(a) (defining theft as “unlawfully appropriat[ing]

property with intent to deprive the owner of property”); id. § 7.02(a)(2) (Vernon

2011) (holding a person “criminally responsible for an offense committed by the

conduct of another if . . . acting with intent to promote or assist the commission of

the offense, he . . . aids, or attempts to aid the other person to commit the offense”).

By pointing a gun at Godfrey during the theft, appellant committed robbery. See

id. § 29.02(a)(2) (defining robbery as intentionally or knowingly threatening or

placing another in fear of imminent bodily injury or death in the course of

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

By shooting Godfrey in the head with a shotgun and killing him as a result,

appellant committed murder.          See id. § 19.02(b)(1) (defining murder as

“intentionally or knowingly caus[ing] the death of an individual”). By murdering

Godfrey in the course of the robbery, appellant committed capital murder. See id.




                                          12
§ 19.03(a)(2) (defining capital murder as intentionally committing murder in the

course of committing or attempting to commit robbery).

      We hold the evidence is sufficient to support the jury’s determination that

appellant was guilty of capital murder.      We overrule appellant’s first issue.

Because we have held that the evidence is sufficient to support a determination that

appellant murdered Godfrey, we do not need to consider whether the evidence is

sufficient to support a determination that appellant murdered Godfrey under the

law of parties or criminal conspiracy. See TEX. R. APP. P. 47.1 (requiring appellate

courts to address every issue raised and necessary to final disposition of the

appeal).

                                   Conclusion

      We affirm the judgment of the trial court.




                                             Laura Carter Higley
                                             Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

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




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