Affirmed as Modified; Opinion Filed July 21, 2017.




                                                      In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas
                                             No. 05-16-00895-CR

                                      EDUARDO RAYO, Appellant
                                                V.
                                    THE STATE OF TEXAS, Appellee

                           On Appeal from the Criminal District Court No. 2
                                        Dallas County, Texas
                                 Trial Court Cause No. F15-75460-I

                                   MEMORANDUM OPINION
                              Before Justices Bridges, Lang-Miers, and Evans
                                         Opinion by Justice Evans
          Eduardo Rayo was convicted of capital murder and sentenced to life imprisonment

without the possibility of parole. Appellant raises two issues on appeal alleging that the jury

charge contained error by authorizing the jury to convict appellant of the offense of conspiracy

and failing to properly apply the law of parties to the facts. We modify the trial court’s judgment

to reflect appellant was convicted of capital murder by committing or attempting to commit

robbery. As modified, we affirm the trial court’s judgment.

                                               BACKGROUND

          On April 11, 2015, Heather Molina was at home with her second husband and five

children.1 Denise Jasso and her four youngest children also lived in the apartment. Heather was

   1
       The children lived with their father during the week and went to their mother’s house every weekend.
in the bedroom with her husband. Heather’s son, Anthony, and her daughter, April were in the

living room. Heather’s daughter, Monica, and two of Denise’s children, Angel and Maria, were

outside in the back on the patio. At about 10:00 p.m., there was a knock on the door. A few

moments after Heather answered the door, she was shot by one of the men. She died as a result

of a gunshot wound to the head. She also had a blunt force injury to her forehead from being

struck by some object, like the muzzle of a firearm.

         All five children testified about what they saw and heard that night when the men came to

the apartment. Anthony testified that when his mother opened the door, he saw two men wearing

hoodies. They both walked inside. One man had a revolver. One of the men told him to go to

the couch and pointed a gun at his head. He heard one man say, “get the money, get the money.”

He heard a huge bang and saw a flash. After the men left, he saw his mother was covered in

blood.

         Monica testified that while she was on the patio, she saw two Hispanic men approach the

apartment, one with a jacket and one with a hat. One of the men asked for Weda, her mother’s

nickname. When Monica walked inside, her mother was already at the front door. She saw one

of the men hitting her mother in the face, and her mother punching back. She then saw a flash

and heard a gun. After seeing the flash, Monica ran outside to neighbor’s house and asked for

help.

         April testified that when her mother opened the front door, she saw two men, both

wearing all black with work shoes and hoodies. The men were talking to each other, saying “you

grab the money.” Both men were holding guns. The first one through the door hit her mother

with the gun. April told her mother to put her hands up and then she heard a gunshot. One of the

men stayed by the door, pointing his gun into the apartment while the other man went through




                                               –2–
the apartment to the patio, pointing his gun at her and Anthony, and telling them to get down.

About a minute later, both men ran off together through the front door.

        Angel testified that he saw two men approach the apartment and knock on the door.

They said they were looking for Weda and that Polo had sent them. He saw the men slam open

the door and both men enter the apartment. He heard them say to Heather, “Give me the money”

and heard Heather say, “Please don’t hurt me; just take it; please don’t hurt me.” Angel saw one

of the men holding the gun towards Heather’s head and shoot her. The other man was standing

about two feet behind the man who shot her. Angel then saw the man move towards Heather and

lean down towards her body. The shooter then ran out of the apartment towards the patio,

pointed the gun at Angel and his sister, and then ran back into the apartment. Both of the men

ran out of the front door of the apartment together. Angel gave the police a description of what

one of the men was wearing, a blue sweatshirt and blue jeans. The other man’s clothing looked

similar. Angel identified appellant in court as the shooter. He recognized him because of the

tattoo and was 100% certain that appellant was the man who shot Heather. Angel testified that

about a month before the shooting, he was looking out his window and saw Heather talking to

appellant in a car.

        Maria testified that she saw two Mexican men knock on the door to the apartment. They

were looking for Weda and said Polo had sent them. Earlier that day, Heather told Maria to let

her know if anyone arrived saying Polo had sent them. After Heather answered the door, and the

men told her that Polo had sent them, she heard screaming and a commotion. Maria then heard

one men say, “give me the fucking money; give me the fucking money.” She also heard Heather

screaming, “just take it; just take it; please don’t hurt me.” Two seconds after that, she heard the

gunshot. After the gun went off, Monica came running out of the apartment, jumped the patio




                                                –3–
fence, and took off running. She saw the man in the white shirt run out. The man in the dark

shirt came out to the patio and pointed a gun at her and her brother and then ran out.

       Abby Vanatta was a drug addict and bought heroin from Heather. She testified that

Heather worked for Polo and would give Polo some of the money she got from selling the drugs.

On the day Heather was killed, she and Polo were having a dispute about money Polo thought

Heather owed him.

       Officer Shutka and his partner responded to the shots fired call at the apartments. While

they were setting up a crime scene perimeter, a man flagged them down and gave them a

description of the vehicle the suspects left in. The police also had appellant’s name and address

from a 911 caller. After a deployment team saw the suspect vehicle near the scene, Officer

Shutka and his partner stopped it. Appellant was the driver, and his wife was the passenger.

       A gunshot residue test was performed on appellant while he was in the back of the patrol

car after being taken into custody. The results were consistent with appellant having recently

fired a firearm, as well as being near a firearm that was fired.

       Detective Tabor conducted a lengthy interview with appellant which was admitted into

evidence and played for the jury. During the interview, appellant admitted that he went to

Heather’s apartment with another man that night. Appellant’s wife was also with them and

drove them out of the apartment complex.        Appellant also admitted that he and the other man

went to the door and said Polo sent them. He described the events leading to the shooting, the

same way the children described them. Appellant said that the other man pulled a gun out of his

pocket and when Heather came to the door, he went in and shot her. Appellant said he thought

they were just going there to get drugs and money and denied knowing that a shooting would

occur. Appellant admitted that they got the dope and that he got a portion of what was taken

from the house.

                                                 –4–
                                           ANALYSIS

                                           Jury Charge

       In his first issue, appellant argues that the theory of conspiracy in the court’s charge

constituted error because the offense of conspiracy had not been alleged in the indictment and

was not a lesser included offense of capital murder. The State argues that the court’s charge did

not instruct the jury to consider whether appellant was guilty of criminal conspiracy but instead

properly instructed the jury on conspiracy as a party under penal code section 7.02(b).

       A person may be convicted 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. TEX.

PENAL CODE ANN. § 7.01(a) (West 2011).            Under section 7.02(a), a person is criminally

responsible as a party 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). Section 7.02(b) provides another theory of party liability as a co-conspirator:

               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.

Id. § 7.02(b). The law of parties, as stated in section 7.02 may be applied to a case even though

no such allegation is contained in the indictment. Montoya v. State, 810 S.W.2d 160, 165 (Tex.

Crim. App. 1989). In addition, the theory of criminal responsibility set forth in section 7.02(b) is

applicable in capital murder cases. Id.

       Here, the abstract portion of the court’s charge included instructions on the law of parties

from both subsections (a) and (b) of section 7.02. It also defined “conspiracy” in accordance

with the definition of “criminal conspiracy” in Texas Penal Code § 15.02(a) as follows:



                                                –5–
               “Conspiracy” is committed if, with intent that a felony be
               committed, a person agrees with one or more persons that they or
               one or more of them engage in conduct that would constitute the
               offense and he or one or more of them performs an overt act in
               pursuance of the agreement.

The application portion of the court’s charge authorized appellant’s conviction for capital murder

as the perpetrator of Heather’s death, as a party to the offense under the law of parties set forth in

section 7.02(a), or as a party to the offense under the law of parties set forth in section 7.02(b).

Specifically, regarding the third theory, the charge instructed the jury:

               If you believe from the evidence beyond a reasonable doubt that
               the defendant, Eduardo Rayo, entered into a conspiracy with an
               unknown person to commit the felony offense of robbery and that
               on or about the 11th day of April, 2015 in Dallas County, Texas, in
               the attempt to carry out this agreement, if any, the unknown person
               did then and there intentionally cause the death of an individual,
               Heather Molina, by shooting the said Heather Molina with a
               deadly weapon, to-wit: a firearm, if he did, and that such offense
               was committed in furtherance of the unlawful purpose of the
               conspiracy to commit robbery, and was an offense that should have
               been anticipated as the result of the carrying out of the agreement,
               then you will find the defendant, Eduardo Rayo, guilty of the
               offense of Capital Murder, though he may have had no intent to
               commit it, and so say by your verdict.

       The court of criminal appeals has addressed the same argument that appellant makes

here. In Montoya, the court of criminal appeals rejected the appellant’s argument that including

the theory of conspiracy in the court’s charge erroneously allowed the jury to consider whether

the appellant was guilty of the separate offense of criminal conspiracy under section 15.02 of the

penal code. Montoya, 810 S.W.2d at 165. The court held the charge, which defined the term

“conspiracy,” “merely contained an alternative ‘parties’ charge as provided in [penal code

section] 7.02(b).” Id.; Murkledove v. State, 437 S.W.3d 17, 22–23 (Tex. App.—Ft. Worth 2014,

pet. dism’d, untimely filed). Likewise, in this case, the charge properly allowed the jury to find

appellant guilty of capital murder under the law of parties. We overrule appellant’s first issue.



                                                 –6–
         In appellant’s second issue, he contends that the jury charge on capital murder failed to

properly apply the facts to the law of parties under section 7.02(a)(2). If the evidence supports,

and the charge authorizes the jury to find that appellant himself shot Heather, there is no need to

rely on the theory of parties to support the conviction. See Pitts v. State, 569 S.W.2d 898, 900

(Tex. Crim. App. 1978); Reyes v. State, 422 S.W.3d 18, 28 (Tex. App.—Waco 2013, pet. ref’d).

Further, if the evidence supports, and the charge authorizes the jury to find that the appellant was

guilty under section 7.02(b), there is no need to rely on the theory of parties under section

7.02(a)(2) to support the conviction. Wallace v. State, 618 S.W.2d 67, 69 (Tex. Crim. App.

1981); Hardmon v. State, No. 05-95-01841-CR, 1997 WL 331006 at *9 (Tex. App.—Dallas June

18, 1997, no pet.) (not designated for publication).                 In this case, the evidence supported

appellant’s conviction both as a principal and as a party under section 7.02(b). 2 Thus, we need

not address appellant’s contention that his conviction should be reversed because the trial court

failed to apply the law to the facts under section 7.02(a)(2). We overrule appellant’s second

issue.

                                         Modification of Judgment

         The trial court’s judgment reflects that appellant was convicted of “capital murder by

terror threat/other felony.” However, the record reflects that appellant was convicted of capital

murder by committing or attempting to commit robbery. Accordingly, we modify the section of

the judgment titled “Offense for which Defendant Convicted” to state “capital murder by

committing or attempting to commit robbery.” See TEX. R. APP. P. 43.2(b); Bigley v. State, 865



    2
      During the charge conference, appellant’s counsel argued that he was entitled to have the theory under which
[appellant] would be a party under 7.02(a)(2) specifically set out in the application paragraph. When the trial court
asked what facts [he wanted applied], appellant’s counsel responded that he did not believe there were any facts,
“Because if he’s guilty as a party, he’s guilty only under the law of conspiracy.” In addition, appellant
acknowledges that, based on the evidence, he could have been found guilty “either individually or as a party to the
offense.”


                                                        –7–
S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—

Dallas 1991, pet. ref’d.).

                                      CONCLUSION

       We modify the trial court’s judgment to reflect that appellant was convicted of capital

murder by committing or attempting to commit robbery. As modified, we affirm the trial court’s

judgment.



                                                   /David W. Evans/
                                                   DAVID EVANS
                                                   JUSTICE


Do Not Publish
TEX. R. APP. P. 47
160895F.U05




                                             –8–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

EDUARDO RAYO, Appellant                               On Appeal from the Criminal District Court
                                                      No. 2, Dallas County, Texas
No. 05-16-00895-CR         V.                         Trial Court Cause No. F15-75460-I.
                                                      Opinion delivered by Justice Evans, Justices
THE STATE OF TEXAS, Appellee                          Bridges and Lang-Miers participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to reflect Eduardo Rayo was convicted of capital murder by committing or attempting to commit
robbery. As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 21st day of July, 2017.




                                                –9–
