Affirmed and Opinion filed September 16, 2014.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00433-CR

                     MONSOUR G. OWOLABI, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 179th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1323910

                                 OPINION
      Appellant Monsour G. Owolabi asserts that the evidence is insufficient to
support his capital-murder conviction. He also asserts the trial court erred in
admitting two photographs into evidence and in charging the jury. We conclude
that legally sufficient evidence supports the conviction, that the trial court did not
abuse its discretion in admitting the photographs, and that any error in charging the
jury was harmless. Accordingly, we affirm.
                    I.    FACTUAL AND PROCEDURAL BACKGROUND

      The complainant, Jose Prieto, and Ranulfo Lopez III were selling marijuana
out of Lopez’s house. Lopez testified that, after completing a deal one evening,
Lopez and the complainant were at Lopez’s house when three individuals forced
open the back door and entered the dwelling. Lopez saw a gun on one of the
individuals, ran out of the front door, and hid in some bushes up the street.
According to Lopez, he stayed in the bushes for a short time before returning to his
home. Upon entering the house, he saw the complainant on the floor bleeding.
Lopez called the police and then began performing cardio-pulmonary resuscitation
at the police’s instruction, but Lopez was unable to save the complainant.

      Around the same time, appellant arrived at a nearby hospital seeking
treatment for a bullet wound in his cheek. Appellant could not be excluded as a
source of blood at the crime scene and the complainant could not be excluded as a
source of blood found on both appellant’s shirt and on a $20 bill in appellant’s
possession. Appellant was arrested and charged by indictment with capital murder,
to which he pleaded “not guilty.” A jury found appellant guilty as charged and he
was automatically sentenced to life in prison without the possibility of parole.

                               II.    ISSUES AND ANALYSIS

      Appellant presents three issues on appeal. He asserts that the evidence is
legally insufficient to support his conviction and that the trial court erred in (1)
admitting two photographs of the complainant into evidence and (2) charging the
jury on the lesser-included offense of aggravated robbery.

      A. Is the conviction supported by sufficient evidence?

      In evaluating a challenge to the sufficiency of the evidence supporting a
criminal conviction, we view the evidence in the light most favorable to the

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verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The
issue on appeal is not whether we, as a court, believe the State’s evidence or
believe that appellant’s evidence outweighs the State’s evidence. Wicker v. State,
667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned
unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson
v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact “is the
sole judge of the credibility of the witnesses and of the strength of the evidence.”
Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact
may choose to believe or disbelieve any portion of the witnesses’ testimony.
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with
conflicting evidence, we presume the trier of fact resolved conflicts in favor of the
prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
Therefore, if any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939
S.W.2d 607, 614 (Tex. Crim. App. 1997).

      In the indictment, it was alleged that, in the course of committing or
attempting to commit robbery, appellant intentionally caused the death of the
complainant by shooting him with a deadly weapon. A person commits capital
murder if the person intentionally causes the death of an individual in the course of
committing or attempting to commit robbery. See Tex. Penal Code §§ 19.02(b),
19.03(a) (West 2014). A person is criminally responsible as a party to an offense if
the offense is committed by his own conduct, by the conduct of another for which
he is criminally responsible, or both. See id. § 7.01(a); Cerna v. State, No. 14-12-
01126-CR, —S.W.3d—,—, 2014 WL3908117, at *3 (Tex. App.—Houston [14th
Dist.] Aug. 12, 2014, pet. filed).

      The trial court’s instructions to the jury included an instruction on law of the

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parties under Penal Code section 7.02(a)(2) and the law of conspiracy under Penal
Code section 7.02(b). See id. § 7.02. A person is 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 solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense. See id. § 7.02(a) (West
2014). If, in the attempt to carry out a conspiracy to commit robbery, capital
murder is committed by one of the conspirators, all conspirators are guilty of the
capital murder actually committed, though having no intent to commit it, if the
capital murder was committed in furtherance of the unlawful purpose, and should
have been anticipated by the other conspirators as a result of the carrying out of the
conspiracy. See id. § 7.02(b).

      Appellant argues that the evidence is legally insufficient to prove beyond a
reasonable doubt that the capital murder should have been anticipated as a result of
carrying out the conspiracy. In particular, he asserts that the evidence does not
prove he possessed or fired a gun or that he knew his conspirators possessed
weapons or planned to fire them. At trial there was evidence of the following:

         • Lopez testified that he ran a business selling marijuana out of his
           house and that the complainant helped him. He testified that neither
           he nor the complainant possessed firearms. According to Lopez, on
           the night of the murder, he had just completed a sale when the back
           door of the house was forced open and three individuals entered the
           dwelling. He testified that he saw a tall, black man wearing a light
           gray shirt and black shorts enter the house with a silver gun. Lopez
           testified that Lopez ran toward the front door and “could swear” he
           heard gunshots being fired immediately as he was running. Lopez
           testified that he hid in some bushes down the street until the cars left
           the home and then returned to find his scale, marijuana, and money
           missing. Lopez also found the complainant shot, and observed bullet
           holes in the wall.
         • Deputy Maurice Carpenter, a Harris County crime scene investigator,
           testified that the door to the dwelling appeared to have been forced
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   open, that items were scattered on the floor, and that a chair was
   overturned, suggesting that a struggle had taken place in the room.
• Deputy Bradley Bruns, a firearms and tool-mark examiner, testified
  that bullets at the crime scene were fired from at least two different
  weapons.
• Darshan Phatak, a Harris County assistant medical examiner, testified
  that the complainant was killed by multiple gunshot wounds. The
  complainant also had several contusions and lacerations that were
  consistent with a struggle. Phatak found stippling on the complainant,
  which indicates the complainant was shot at a range of one to three
  feet. Phatak also said that the downward angle of one of the gunshots
  was consistent with Prieto having been shot while falling or kneeling.
• Deputy Oscar Cisneros made contact with appellant later that night at
  a hospital near the crime scene. Appellant was receiving treatment for
  a gunshot wound to his cheek and lied to Deputy Cisneros about the
  cause of the injury. Shortly thereafter, while appellant was still at the
  hospital, Sergeant Anthony McConnell performed a gunshot residue
  test kit on appellant. When appellant asked him about the results of
  the test, Sergeant McConnell bluffed and told him the test was
  positive for gunshot residue. In response, appellant stated that he had
  held a gun that morning, but that he had not fired a gun.
• Appellant’s belongings included $520 in cash, including a $20 bill
  that was blood-stained. The complainant could not be excluded as a
  contributor to the blood stain on the bill. The chances of another
  contributor are 1 in 30 quintillion Caucasians, 1 in 56 quintillion
  African-Americans, and 1 in 343 quadrillion Hispanics. The
  complainant also could not be excluded as a contributor to a blood
  mixture found on appellant’s shirt.
• Appellant could not be excluded as a source of blood found on the
  butt of a magazine found at the crime scene, blood found on the floor
  of the breakfast area in Lopez’s house, blood found in the laundry
  room, blood found on the washing machine, blood found on the
  driveway, and blood found on a nearby road. The chances of another
  contributor are 1 in 191 quintillion Caucasians, 242 quintillion
  African-Americans, and 1 in 273 quintillion Hispanics.
• Shaunda Logunkleko, the mother of appellant’s best friend testified
  that she visited appellant when he returned to Ben Taub Hospital the

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            next day for further treatment. According to Logunkleko, appellant
            confessed that he had been shot by a Hispanic man after he and three
            other men set up a “robbery that went bad.” Logunkleko testified
            appellant informed her that appellant and a Hispanic man ended up
            “getting into it, into tussling, and in the process of the tussling, like
            wrestling, a gun went off.” Logunkleko stated that she told the police
            that he told her he fired a shot while he was being shot. Logunkleko
            stated that appellant said he had ended up getting shot in the face by
            one of his conspirators and his adrenaline ran high.
         • Appellant testified that he went to the house with a friend to purchase
           marijuana when strangers broke in to rob the complainant and Lopez.
      The evidence shows that appellant was at the crime scene.            Although
appellant testified that he was there to purchase marijuana, his testimony
contradicts Lopez’s version of events. Lopez stated that he and the complainant
were alone when three men intruded. Lopez testified that he saw a gun when the
men broke in and “could swear” he heard shots almost immediately. We presume
the jury credited Lopez’s testimony and discredited appellant’s. See Turro, 867
S.W.2d at 47.

      The record contains evidence that appellant could not be excluded as a
source of blood in close proximity to the complainant or from contributing to blood
obtained from the butt of a magazine found at the crime scene. The complainant
could not be excluded as a contributor to blood on appellant’s shirt. Additionally,
appellant was found with money containing blood stains from which the
complainant could not be excluded as a source. See Padilla v. State, 326 S.W.3d
195, 200 (Tex. Crim. App. 2010). Appellant argues that the biological evidence
does not prove he fired a weapon because his blood could have dropped on the
magazine butt, and in the area, after he was shot. According to Logunkleko,
appellant admitted his involvement in a plan to rob the complainant, to wrestling
with the complainant, and firing a gun.      Appellant argues that Logunkleko’s

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testimony is in conflict as to whether he fired a gun. At one point, Logunkleko
stated that appellant and Prieto were struggling when a gun went off, and then
another shot was fired, and appellant did not know who fired that other shot.
Logunkleko also testified that she informed police that appellant fired a shot when
he was being shot. We must presume that the jury resolved any conflicts in
Logunkleko’s testimony in favor of the prosecution, and we must defer to that
resolution. See id.

      Nonetheless, even if appellant did not fire a gun and did not commit capital
murder by his own conduct, the evidence still is sufficient to support appellant’s
conviction if, under the applicable standard of review, a rational trier of fact could
have found beyond a reasonable doubt that, in an attempt to carry out a conspiracy
to commit robbery, capital murder was committed by one of appellant’s fellow
conspirators in furtherance of the unlawful purpose, and appellant should have
anticipated the capital murder as a result of the carrying out of the conspiracy. See
Tex. Penal Code § 7.02(b). The evidence would allow a rational trier of fact to
find beyond a reasonable doubt that (1) appellant conspired with others to commit
robbery; (2) in an attempt to carry out that conspiracy, the conspirators forced their
way into Lopez’s house while at least one of appellant’s fellow conspirators was
carrying a firearm; (3) at least one of appellant’s fellow conspirators fired shots
almost immediately upon entry into the house; (4) appellant and the complainant
were struggling when a gun went off. At trial, appellant admitted to taking money
from the floor while the complainant lay there dying from multiple gunshot
wounds.

      The cumulative effect of the incriminating evidence would permit a rational
trier of fact to find beyond a reasonable doubt that, in an attempt to carry out a
conspiracy to commit robbery, one of appellant’s fellow conspirators committed

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capital murder in furtherance of the unlawful purpose, and that appellant should
have anticipated the capital murder as a result of the carrying out of the conspiracy.
See Tex. Penal Code § 7.02(b); Canfield v. State, 429 S.W.3d 54, 69–70 (Tex.
App.—Houston [1st Dist.] 2014, pet. ref’d); Whitmire v. State, 183 S.W.3d 522,
526–27 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d); Turner v. State, 414
S.W.3d 791, 797–99 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Under the
applicable standard of review, we conclude that the evidence is legally sufficient to
support appellant’s capital-murder conviction as a conspirator under Penal Code
section 7.02(b). See Tex. Penal Code § 7.02(b); Canfield, 429 S.W.3d at 69–70;
Whitmire, 183 S.W.3d at 526–27; Turner, 414 S.W.3d at 797–99. See also Moore
v. State, 24 S.W.3d 444, 447 (Tex. App.—Texarkana 2000, pet. ref’d) (holding that
sufficient evidence supported aggravated-robbery conviction when accused’s
fellow conspirator shot victim with weapon found in the home and noting that
“when an individual decides to steal property from a private residence, he should
anticipate that he might be confronted and that his conspirators might react
violently to that confrontation”).

        Accordingly, we overrule appellant’s first issue.

      B. Were two photographs of the complainant inadmissible under Texas
         Rule of Evidence 403?
      In his second issue, appellant asserts that the trial court erred in admitting
over appellant’s objections, two photographs of the complainant celebrating his
birthday with his family.     Appellant argues that the probative value of these
photographs was substantially outweighed by the danger of unfair prejudice. We
review a trial court’s ruling on the admissibility of evidence under an abuse-of-
discretion standard. See Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App.
2010). Texas Rule of Evidence 403, entitled “Exclusion of Relevant Evidence on
Special Grounds,” states:
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      Although relevant, evidence may be excluded if its probative value is
      substantially outweighed by the danger of unfair prejudice, confusion
      of the issues, or misleading the jury, or by considerations of undue
      delay, or needless presentation of cumulative evidence.
      Rule 403 favors the admission of relevant evidence and carries a
presumption that relevant evidence will be more probative than prejudicial.
Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh’g).
A proper Rule 403 analysis by either the trial court or a reviewing court includes,
but is not limited to, the following factors: (1) the probative value of the evidence;
(2) the potential to impress the jury in some irrational, yet indelible, way; (3) the
time needed to develop the evidence; and (4) the proponent’s need for the
evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). In the
context of the admission of photographs, we also consider the number of
photographs, their size, whether they are in color or are black and white, whether
they are gruesome, whether any bodies are clothed or naked, and, where
applicable, whether the body has been altered by autopsy. Id.

      Appellant relies on State v. Salazar to support his contention that admitting
the photographs violated Rule 403. See 90 S.W.3d 330, 335–38 (Tex. 2002). In
Salazar, the Court of Criminal Appeals held that a seventeen-minute video
montage of photographs depicting the murder victim’s life, set to music from the
movie Titanic, was inadmissible victim-character evidence and remanded to the
court of appeals to determine whether the error was harmful. See id. Unlike the
video montage the trial court admitted in Salazar, the two photographs of the
complainant with his family were still images that were small in size.            The
photographs are probative of the complainant’s identity, which the State had the
burden to establish. Gonzalez v. State, 296 S.W.3d 620, 632 (Tex. App.—El Paso
2009, pet. ref’d). The time taken to develop the evidence was minimal. The trial
court did not abuse its discretion in determining that the probative value of the
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evidence was not substantially outweighed by the danger of unfair prejudice. See
Williams v. State, 958 S.W.2d 186, 196 (Tex. Crim. App. 1997); Gonzalez, 296
S.W.3d at 632. Accordingly, we overrule appellant’s second issue.

        C. Was any error in submitting aggravated robbery to the jury as a
           lesser-included offense harmless?
        In his third issue, appellant argues that the trial court erred in submitting to
the jury the offense of aggravated robbery as a lesser-included offense.                We
presume for the sake of argument that appellant objected on this basis in the trial
court and that the trial court erred in submitting this lesser-included offense to the
jury.   Even presuming for the sake of argument that the trial court erred in
submitting the instruction, reversal is appropriate only if appellant suffered some
harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). The
actual degree of harm must be assessed in light of (1) the entire jury charge, (2) the
state of the evidence, including the contested issues and weight of probative
evidence, (3) the argument of counsel; and (4) any other relevant information
revealed by the record as a whole. Id.

        Appellant does not provide any argument as to how submitting this offense
to the jury harmed him. 1 The trial court instructed the jurors to consider the lesser-
included offense of aggravated robbery only if they had a reasonable doubt that
appellant was guilty of capital murder. The charge instructions as a whole state
that the jury should not consider aggravated robbery if the jury finds appellant
guilty of capital murder. The first factor weighs in favor of finding any error
harmless. The evidence was sufficient for the jury to convict appellant of capital
murder and the jury did so. If anything, the additional instruction provided the jury
with an option to convict appellant of a lesser offense based on the evidence
1
 We do not suggest that appellant had a burden to brief or show harm; we simply note that he
has not argued or explained how he was harmed.

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introduced at trial.   The second factor weighs in favor of finding any error
harmless. Counsel directed his argument to possible questions that allegedly were
not addressed by the evidence. This factor is neutral in our analysis. Under the
fourth factor, we consider the jury’s determination that appellant is guilty of the
greater offense of capital murder. See Arevalo v. State, 987 S.W.2d 164, 166 (Tex.
App.—Houston [1st Dist.] 1999, pet. ref’d) (holding that it was harmless to
instruct jury on lesser-included offense where jury convicted the accused of the
greater offense). Under the Almanza “some harm” analysis, we conclude that
appellant suffered no actual harm from the submission of aggravated robbery as a
lesser-included offense. See Almanza, 686 S.W.2d at 171; Arevalo v. State, 987
S.W.2d at 166. Therefore, appellant’s third issue is overruled.
                                     III.         CONCLUSION
      Appellant’s conviction is supported by legally sufficient evidence. The trial
court did not err in admitting into evidence photographs of the complainant
celebrating his birthday. Any error in the trial court’s jury submission of the
offense of aggravated robbery as a lesser-included offense was harmless.
      The trial court’s judgment is affirmed.




                                            /s/     Kem Thompson Frost
                                                    Chief Justice

Panel consists of Chief Justice Frost and Justices Donovan and Brown.
Publish — TEX. R. APP. P. 47.2(b).




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