Affirmed and Memorandum Opinion filed February 21, 2019.




                                           In The

                        Fourteenth Court of Appeals

                                     NO. 14-17-00315-CR

                         JOHN ANTHONY VELA, Appellant
                                             V.
                          THE STATE OF TEXAS, Appellee

                       On Appeal from the 209th District Court
                               Harris County, Texas
                           Trial Court Cause No. 1444432

                    MEMORANDUM                      OPINION


      Appellant John Anthony Vela appeals his conviction for capital murder.1
The State did not seek the death penalty, and appellant received an automatic
sentence of life imprisonment. Appellant challenges his conviction in two issues,
arguing: (1) the trial court included an instruction in the jury charge on the law of
parties when no evidence of appellant’s participation in the offense with another

      1
          Tex. Penal Code § 19.03.
party exists; and (2) insufficient evidence supports his conviction. We conclude
that sufficient evidence supported submission of the law-of-parties instruction
because the evidence raised the issue of participation with an unknown individual.
We further conclude appellant’s conviction is supported by sufficient evidence and
affirm the trial court’s judgment.

                                     BACKGROUND

      In the morning hours of September 27, 2002, a maintenance worker
discovered the bodies of the complainants, Melissa Williams and Kevin Collins, in
a bedroom of their trailer home in La Porte. Williams and Collins had been
stabbed with a knife multiple times. Williams’s two-year-old child, M.J., was
found standing in her crib unharmed.         Police investigated the deaths, but no
charges were filed until fourteen years later, when appellant was arrested and
indicted for capital murder. A jury convicted appellant as charged.

Appellant begins purchasing drugs from Williams and a dispute develops.

      In 2002, Williams and Collins were in their early twenties and living
together in a trailer home in La Porte. Recently unemployed, Williams began
selling crack cocaine to between five and seven people. She stored the drugs in the
trailer, hidden in various places, and Collins occasionally helped Williams with the
drug sales. Williams’s close friend Elise Lunday visited often and testified that
Williams liked her home neat and kept the trailer immaculate.

      Approximately two months before the murders, Williams ran into appellant
at a local convenience store. Williams knew appellant from school and through
her friendship with two of his sisters. Appellant accompanied Williams from the
convenience store to the trailer home to pick up Collins and Lunday. Williams,
Collins, Lunday, and appellant then travelled to appellant’s apartment, located


                                         2
approximately a mile from the trailer park. While at appellant’s apartment, the
four smoked marijuana and watched a movie. Appellant played the movie using a
DVD-VCR combination player, a novel electronic device at the time. Appellant
commented that he had recently purchased the DVD-VCR combo for a lot of
money.

      Over the next two months, appellant purchased drugs from Williams ten to
fifteen times. One night, a couple of weeks after the four went to appellant’s
apartment, Lunday was spending the night at the trailer with Williams and Collins.
Appellant came by the trailer home around 5:00 a.m. banging on the doors and
windows, asking for crack cocaine. Williams became angry and appellant left.
The following day, Williams went over to appellant’s apartment and returned with
a DVD-VCR combo. The DVD-VCR combo Williams returned with appeared to
be the same DVD-VCR combo Lunday had seen in appellant’s apartment. In
Lunday’s presence, Williams scratched off the serial numbers and carved an “M”
in the back of it, and then took it to another friend’s trailer a few doors down.
Sometime later, Williams brought the DVD-VCR combo back to her own trailer
and placed it next to the TV in the master bedroom she shared with Collins.
Collins hooked up the DVD-VCR combo to the TV.

      Although appellant initially told his friends that the DVD-VCR combo was
stolen, appellant eventually admitted that he traded the DVD-VCR combo to
Williams for $40 worth of drugs. Appellant asked Williams to give him more for
the DVD-VCR combo, but she refused and would not return it to appellant.
Because of his dispute with Williams over the DVD-VCR player and because he
owed Williams money, appellant could no longer buy drugs from Williams.
Appellant asked a friend, Eric Baswell, to get drugs from Williams so that
appellant could then in turn sell them to someone else for a profit. Baswell later

                                        3
learned that appellant did not intend to sell the drugs to someone else, but instead
wanted the drugs for himself.

The day before and morning of the murders.

       On September 26, 2002, the day before the murders, Williams mowed the
yard and spent the day cleaning. Lunday was at the trailer with Williams and
noticed that Williams had used a set of sheets and comforter that Lunday had
recently given her on the bed in Williams’s and Collins’s bedroom. When Lunday
entered the bedroom, she noticed that it smelled good and was very clean. She also
noticed the DVD-VCR combo player in the bedroom.2 That same day, Lunday and
Williams had rented two movies from Blockbuster—the VHS movie Frailty and a
DVD that was a comedy.3 Lunday then went back to her apartment, but around
7:00 p.m., Williams picked Lunday up from her apartment and they returned to the
trailer to cook dinner.

       Several of Williams’s and Collins’s friends came and went that night,
starting around 8:00 or 9:00 p.m. The friends mainly played video games on a
Playstation set up in the living room of the trailer and smoked marijuana. The air
conditioner in the trailer was not working that night and the trailer became warm.
The group ran fans and cracked some of the windows. Lunday was not feeling
well and by 10:00 p.m. could no longer tolerate the heat. Williams called a friend
to come over and give Lunday a ride home. 4 Around midnight, Williams went
over to Lunday’s apartment to bring her NyQuil and orange juice. Williams
dropped off the items and made plans with Lunday for the next morning.

       2
         Lunday conceded on cross-examination that when she spoke to the police in October
2002, she stated she did not recall seeing the DVD-VCR player. She explained that she was in
the process of burying her friends and terrified at that time.
       3
           Evidence revealed a DVD movie case at the scene for the movie Big Fat Liar.
       4
           Williams’s car was in the repair shop.

                                                    4
      That same evening, appellant was at his friend Roger Bray’s townhouse.
Bray lived near appellant and appellant would go over to Bray’s house “pretty
much every day after work.” The two, along with their friend Baswell, would
often hang out and smoke marijuana after appellant got off work doing manual
labor at Zachary Construction. That evening, Baswell and Bray were playing on a
Playstation when appellant came over. Appellant asked Baswell to go over to
Williams’s and Collins’s trailer to get drugs for appellant to sell to a third party.
Recalling the last time appellant asked them to do so when the drugs were actually
for appellant and not a third party, Baswell refused. Appellant then asked Baswell
to page their friend Zachary Brooks to ask Brooks to bring drugs over, but Baswell
had already done so and refused to page him again.               Appellant left Bray’s
townhome around 8:00 or 9:00 p.m. agitated that Baswell would not go to
Williams’s trailer or page Brooks to obtain drugs. Appellant did not return to
Bray’s that night.

      Later that evening, appellant asked James Stone for a ride to Williams’s and
Collins’s trailer park. Stone lived in the same apartment complex as appellant and
was the son of the complex’s manager. Stone had provided a “rock” of crack
cocaine to appellant previously and testified that appellant owed him money for
that and owed rent. According to Stone, appellant told him that appellant planned
to get a “front”5 of drugs from Collins. Stone dropped appellant off at the trailer
park, one lot over from Williams’s and Collins’s trailer, sometime near “closing
time” for a bar that Stone was heading to.

      Around 2:30 a.m., on September 27, 2002, Melvin Anderson and Thomas
Durst, who had been part of the group hanging out at Williams’s and Collins’s

      5
        Stone defined a front as “a lump sum of drugs to make the money you need and cover
what you owe the man you got it from.”

                                            5
trailer that night, left to go home. At the time they left the trailer, seven people
remained: Williams, Collins, M.J., and four friends.          Anderson saw nothing
unusual that night and he did not see appellant come over.

Discovery of Williams’s and Collins’s bodies.

      At approximately 9:30 a.m., trailer park maintenance worker Jesse Lewis
went to Williams’s and Collins’s trailer to repair the air conditioner.          Lewis
received no answer to his knock on the door, but discovered the front door open,
the trailer quiet, and drawers pulled out in the kitchen. Lewis continued to the
back of the trailer and the master bedroom where the breaker box was located. As
he stood at the threshold, he saw Williams’s and Collins’s bodies. Collins was on
his back on the bed and Williams was lying in a fetal position on the floor. Lewis
did not initially understand what he was seeing but when he noticed he was
standing in blood, he left the trailer and called his wife, who called the police.

      The responding officers entered the trailer and went to the bedroom, where
they observed blood everywhere, open cuts on the two bodies, and no sign of life.
The officers removed M.J. from her crib and secured the scene to wait for
investigators. Detective Danny Jones from the La Porte Police Department and
Texas Ranger Freeman Martin were assigned to investigate the crime.                  Jones
observed an open window next to the door along with several electronics,
including a television, video game station, and VCR player, in the living room that
were untouched. In contrast, the master bedroom where the bodies were found was
in disarray, with the television knocked on the floor, dresser drawers opened with
their contents dumped out, and paneling from a closet removed from the wall. On
the mattress where Collins’s body lay, the investigators found bloody footprints
and a remote control for a DVD-VCR player covered in blood.

      Williams was found nude in a fetal position on the floor next to the bed. She
                                           6
sustained forty-seven stab wounds, including many to her back and multiple
defensive wounds to her hands, forearms, and wrists. Her death was caused by
loss of blood from the multiple stab wounds. Collins was found nude laying on his
back on top of the bed. He sustained sixty-seven stab wounds, thirty-one of which
were defensive wounds. Collins suffered significant wounds to his upper chest
area and neck, including the severing of his jugular vein. He also suffered a wound
to his left ankle with significant blood loss, which could have been a defensive
wound received from kicking his assailant. After processing the scene, personnel
from the trailer park boarded up the trailer with instructions from the police not to
let in unauthorized persons.

      That evening, appellant did not go to Bray’s townhome as he typically did
after work to hang out and smoke marijuana. Bray found it unusual, especially
given what happened to Williams and Collins. Two days later, appellant went over
to Bray’s townhome. By that time, appellant’s name had been mentioned as being
involved with the murders. When Bray asked appellant if he had anything to
worry about, appellant responded “hell no.” According to Bray, the only thing
people had heard at that point was that someone broke in, stabbed the victims, and
it was bad. Appellant asked “[s]o what happened, somebody just walked in there
and stabbed them gaucho, like gaucho, like a bunch?”6 A few days later Bray
observed appellant moving things out of his apartment, and appellant told Bray he
was going to work for Zachary Construction in China because “people were trying
to pin this on him.” Bray acknowledged that appellant had moved back and forth
between his parents’ home before.

The initial investigation.

      A few days after the discovery of Williams’s and Collins’s bodies, Detective
      6
          Bray explained that gaucho is “a Mexican phrase for a bunch of times.”

                                                7
Jones returned to the trailer. He had learned of the DVD-VCR combo from
Lunday and of the fact that she found appellant suspicious. Detective Jones did not
find the DVD-VCR combo in the trailer, but he did locate in the master bedroom
an empty DVD case for the movie Big Fat Liar and an empty VHS case for the
movie Frailty.

      On October 7, 2002, approximately ten days after the murders, Detective
Jones and Ranger Martin went to speak with appellant at his apartment. They
observed appellant loading his furniture and belongings into the back of a black
Ford Explorer. Many of the belongings were in black plastic trash bags. After
obtaining appellant’s consent, Jones and Martin searched the vehicle, but did not
search the contents of all of the black trash bags and found no evidence they felt
was of value. That same evening, appellant went to the police station and Ranger
Martin photographed several scratches on appellant’s left hand, left arm, and back,
as well as a bruise on his right leg. They also searched appellant’s parents’ home
that evening. Detective Jones stated they did not search thoroughly because of the
late hour, and although they inspected appellant’s shoes and clothes at the house,
they found nothing of value to their investigation.

      Shortly after the murders, police also investigated James Stone, the
acquaintance who gave appellant a ride to the trailer. Stone was a known drug
addict and had previously bought crack cocaine from Collins and Williams. Police
interviewed Stone at his apartment, where they found cocaine and a kitchen knife.
Stone was on probation at the time and was arrested and sent to prison for the
cocaine possession. The knife recovered from Stone’s apartment was stored with
his drug case and was not processed for blood. The knife was ultimately destroyed
without being tested, which Detective Jones conceded was a mistake. In his initial
and several subsequent interviews with the police, Stone did not inform them of

                                          8
the ride he gave appellant to the trailer park in the early morning hours before the
murders.

      In February 2003, Detective Jones and Ranger Martin decided to go back to
appellant’s parents’ home and conduct another search. At that time, they located a
DVD-VCR combo player in a black plastic trash bag at the bottom of a closet. The
detective found a DVD-VCR combo player, which contained the DVD movie Big
Fat Liar, and the VHS movie Frailty. The player also had what appeared to be
blood stains on the back where the plugs were located. Jones and Martin also
located a single lock-bladed knife with a wood handle in the same bedroom. Both
the knife and DVD-VCR combo were analyzed. No blood was found on the knife,
but apparent blood was found on the DVD-VCR combo. DNA analysis of the
blood revealed profiles consistent with Williams’s DNA on the underside panel
and a front plug, and a mixture of Williams’s and Collins’s DNA on a white plug
on the front and back panel area. The DVD-VCR combo also had the letter “M”
carved on the back. The search of appellant’s parents’ home did not reveal a
murder weapon, any footwear consistent with the bloody shoe prints found at the
scene, or any drugs.

      The investigators collected fingernail clippings and scrapings from both
Williams and Collins. Analysis of a portion of the fingernail scrapings from
Williams and Collins was also analyzed, which found only profiles consistent with
Williams’s and Collins’s DNA.       The untested portions of the fingernails and
scrapings were repackaged and stored. Appellant was excluded from samples
taken from pillowcases and drawers at the scene. The case was presented to the
then-district attorney in 2002 and charges were rejected. The case went cold.

A new district attorney accepts charges and new testing is performed.

      In 2009, La Porte’s new police chief asked detectives about open cases.
                                         9
Detective Jones identified Williams’s and Collins’s murder and began re-
investigating the case. By 2014, he re-interviewed original witnesses and suspects
and submitted ten items of evidence for re-testing. Although no new DNA or
additional evidence was found in 2014, Detective Jones presented the case to
different prosecutors in the district attorney’s office and charges were accepted.
Analysts with the Department of Public Safety crime lab then re-tested the
fingernail clippings and scrapings from Williams using newer and more sensitive
technology. When the testing was performed in October 2016, the test revealed
that one of Williams’s fingernail clippings had a substance under it consistent with
a mixture of DNA from three individuals: Williams, appellant, and an unknown
individual. The forensic scientist that performed the testing explained that the
likelihood ratio showed it was 186,000 times more likely that the DNA profile
came from Williams, appellant, and an unknown individual, than if the DNA came
from Williams and two unknown individuals. Investigators also spoke with Stone
again regarding his initial statements to police.              Although he initially denied
remembering, claiming he was scared he would be implicated in the murders,
Stone told investigators that he did in fact recall giving appellant a ride to the
trailer park in the early morning hours before the murders.7 Stone was excluded
from the mixture found under Williams’s fingernail.

       The case proceeded to trial in 2017. Over appellant’s objection, the trial
court included in the abstract and application portions of the jury charge
instructions related to criminally responsible conduct and the law of parties. The
jury found appellant guilty, and this appeal followed.




       7
          Stone also admitted at trial that he lied to police about being in a fight at a bar on the
night of the murders.

                                                10
                                       ANALYSIS

         Appellant raises two issues on appeal. In his first issue, appellant argues the
trial court committed reversible error by including the law-of-parties instructions in
the charge because there was no evidence that appellant participated as a party with
anyone else in committing the offense. In his second issue, appellant argues that
the evidence supporting his guilt for the charged offense is legally insufficient.
Because the sufficiency challenge would afford appellant the greatest relief, we
address that issue first. See Lucas v. State, 245 S.W.3d 611, 612 (Tex. App.—
Houston [14th Dist.] 2007, pet. ref’d). We then turn to appellant’s claim of charge
error.

I.       Sufficient evidence supports the jury’s verdict.

         The State has the burden to prove, beyond a reasonable doubt, every element
of the charged offense. Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App.
2018).     In reviewing the sufficiency of the evidence, a reviewing court must
determine whether “‘after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” Id. (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)); Spiers v. State, 543 S.W.3d 890, 896 (Tex. App.—Houston [14th
Dist.] 2018, pet. ref’d). Under the sufficiency standard, “‘all of the evidence is to
be considered in the light most favorable to the prosecution.’” Washington v.
State, __ S.W.3d __, 2018 WL 6684294, at *3 (Tex. App.—Houston [14th Dist.]
2018, no pet. h.) (quoting Jackson, 443 U.S. at 319). The jury is the “sole judge of
the credibility and weight to be attached to witness testimony.” Balderas v. State,
517 S.W.3d 756, 766 (Tex. Crim. App. 2016). The jury must resolve conflicts in
the testimony, weigh the evidence, and draw reasonable inferences from basic facts
to ultimate facts. Nisbett, 552 S.W.3d at 262. “An appellate court cannot act as a

                                            11
thirteenth juror and make its own assessment of the evidence. A court’s role on
appeal is restricted to guarding against the rare occurrence when the factfinder
does not act rationally.” Id.

      Circumstantial evidence is as probative as direct evidence, and
circumstantial evidence alone can be sufficient. Id. “Each fact need not point
directly and independently to guilt if the cumulative force of all incriminating
circumstances is sufficient to support the conviction.” Id. Courts must consider
the evidence cumulatively, thus we cannot use a “divide and conquer” strategy for
evaluating the sufficiency of the evidence. Id.

      In proving each element of the charged offense beyond a reasonable doubt,
the State is not required to exclude every conceivable alternative to a defendant’s
guilt. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). “Focusing
on other reasonable explanations for evidence improperly applies the abrogated
reasonable-alternative-hypothesis construct.” Ingerson v. State, 559 S.W.3d 501,
509 (Tex. Crim. App. 2018).         The jury has the exclusive role to resolve
inconsistencies in the evidence, “including deciding whether the State's theory of
the case is more credible than another reasonable, exculpating hypothesis raised by
the evidence.” Ramsey v. State, 473 S.W.3d 805, 808 n.3 (Tex. Crim. App. 2015).

      In this case, the State had to prove beyond a reasonable doubt that appellant
intentionally and knowingly caused the deaths of Williams and Collins in the same
transaction by stabbing them with a knife. Tex. Penal Code § 19.03(a)(7)(A).
There is no dispute that Williams and Collins died from stab wounds from a knife
or that they were murdered during the same transaction. Appellant’s challenge to
the evidence is based on identity. Appellant argues the State failed to prove he was
present at or near the time of the murders and had the opportunity to commit the
offense. Identity may be established by direct evidence, circumstantial evidence,

                                         12
or reasonable inferences from the evidence. Ingerson, 559 S.W.3d at 509. We
conclude that, after reviewing the evidence in the light most favorable to the
verdict, the evidence is sufficient to support the jury’s verdict.

      The State produced several pieces of circumstantial evidence that appellant
committed the murders.         Investigators retained and re-tested the fingernail
clippings and scrapings from Williams. Appellant could not be excluded from the
mixture of DNA recovered from Williams’s fingernail. The likelihood of it being
appellant’s DNA was 186,000 times more likely than it being the DNA of another
unknown individual. Appellant argues that the DNA evidence does not place him
at the scene at or near the time of the murders, only that he was in the trailer at
some point. But there was other evidence from which a rational fact finder could
infer that appellant was at the scene at or near the time of the murders. See Finley
v. State, 529 S.W.3d 198, 204 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d)
(while mere presence of defendant’s blood in the sink was evidence that defendant
was at the house at some point, mixture of defendant’s blood and victim’s blood in
sink supported inference defendant was at the scene and attempted to eliminate
evidence).

      Lunday testified that Williams had been cleaning all day and made dinner in
the hours before the murders. The DNA analyst explained that DNA evidence may
be washed off if a person washes their hands and that DNA evidence does not
crawl or travel on its own. No witness reported seeing appellant at the trailer after
the cleaning. Investigators documented scratches on appellant’s arm and back and
bruising on his leg ten days after the murders. The DNA analyst testified that it
would not be unusual to find the DNA of a person who was scratched under a
victim’s fingernail. Another analyst testified that a victim can receive a defensive
wound in the ankle area when kicking his attacker. Collins had a significant

                                           13
wound on his left ankle and appellant had bruising on the inside of his leg
consistent with someone kicking him. A reasonable inference from the evidence is
that appellant’s DNA lodged under Williams’s fingernail during the course of the
murders and is probative of appellant’s guilt. See Matthews v. State, 513 S.W.3d
45, 55 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (finding sufficient
evidence defendant committed murder based on, among other things, evidence that
defendant’s DNA was recovered from victim’s fingernail clippings); see also
Webster v. State, No. 01-16-00163-CR, 2017 WL 2806786, at *6 (Tex. App.—
Houston [1st Dist.] June 29, 2017, no pet.) (mem. op., not designated for
publication) (location of defendant’s DNA was indicative of guilt because it
indicated victim attempted to defend herself from him).8

      Appellant challenges the DNA evidence and the evidence of scratches and
bruising based on the weight and credibility of the evidence. The DNA analyst
discussed the fact that DNA can remain on a surface for a long time and can be
transferred by mere contact with an object. Appellant argues the DNA could have
been transferred to Williams’s fingernail from simple contact sometime other than
the murders, and that the likelihood of the DNA belonging to appellant was small
given the ratio of 186,000 to 7 billion people on earth. Appellant further argues
that the scratches and bruising were not substantial and could have been sustained
in the course of his employment as a manual laborer for Zachary Construction.
Appellant has offered alternative hypotheses for the evidence or attacked the
weight to be given the DNA evidence, but the jury is the exclusive judge of the
weight and credibility of the evidence and witnesses. Ingerson, 559 S.W.3d at 509
(“Focusing on other reasonable explanations for evidence improperly applies the

      8
         We acknowledge that Webster, as an unpublished decision, has no precedential value
but the similar facts make the case instructive. See Roberson v. State, 420 S.W.3d 832, 837
(Tex. Crim. App. 2013).

                                            14
abrogated reasonable-alternative-hypothesis construct.”); Ramsey, 473 S.W.3d at
809 (“The trier of fact is the exclusive judge of the credibility and weight of the
evidence and is permitted to draw any reasonable inference from the evidence so
long as it is supported by the record.”); Washington, 2018 WL 6684294, at *7.

       The State also presented evidence that the DVD-VCR combo with an “M”
scratched on the back was in appellant’s possession after the murders.
Investigators located the DVD-VCR combo player in a trash bag at the bottom of a
closet in appellant’s parents’ home where he was staying. The DVD-VCR combo
held the two movies that had been rented by Lunday and Williams the day before
the murders, the empty cases for which remained at the murder scene. The remote
control from the DVD-VCR combo was found covered in blood at the murder
scene. Lunday testified that she saw the DVD-VCR combo player in Williams’s
and Collins’s bedroom on the day before the murders but it was not located at the
scene after the bodies were discovered. The DVD-VCR combo contained several
spots of apparent blood that contained DNA consistent with Williams and Collins.
A rational fact-finder could conclude from this evidence that the DVD-VCR
combo was at the scene at or near the time of the murder, and then later found in
appellant’s possession, supporting an inference of appellant’s guilt. See Dawkins
v. State, 495 S.W.3d 890, 896 (Tex. App.—Houston [14th Dist.] 2016, no pet.)
(holding sufficient evidence existed to support murder conviction based on, among
other things, defendant’s possession of car, television, and DVD player from
complainant’s apartment).9


       9
         Appellant states “[i]t is very possible that the combination player was returned to the
Appellant prior to or after the murders by either of the Complainants.” Of course, the
complainants could not have returned the combination player to appellant after the murders
because they were dead. Other evidence supports an inference that the combination player was
not returned to appellant before the murders either. As discussed, the player recovered from
appellant’s parents’ closet contained the two movies Williams had rented shortly before the
                                              15
          The State presented evidence of appellant’s motive and opportunity to
commit the charged offense. While motive and opportunity are not elements of the
offense and not sufficient to prove identity, they are “circumstances indicative of
guilt.”     Merritt, 368 S.W.3d at 526; see also Ingerson, 559 S.W.3d at 510.
Evidence showed that appellant was upset with Williams regarding the DVD-VCR
combo trade and that he wanted a front for drugs from Collins the evening of the
murders. Baswell testified that appellant believed he did not receive a sufficient
amount of drugs in exchange for the DVD-VCR combo and was upset that
Williams would not return it or give him more drugs. Baswell and Bray testified
that on the evening before the murders appellant specifically asked them to get a
front of drugs from Collins. Baswell and Bray would not do so and appellant left
Bray’s townhome that evening aggravated or agitated that they would not help him
get drugs.      A rational fact-finder could believe that appellant was angry that
Williams did not give him more for the DVD-VCR combo, agitated that he could
not get more drugs that evening, and wanted to obtain drugs from Collins. The
state of the scene is consistent with someone searching for drugs.

          Motive to kill based on anger or a desire to obtain drugs are circumstances
indicative of guilt. Ingerson, 559 S.W.3d at 510 (anger is a motive for murder
indicating guilt); cf. Gibbs v. State, 555 S.W.3d 718, 731 (Tex. App.—Houston
[1st Dist.] 2018, no pet.) (evidence of defendant’s prior drug transactions and
knowledge of where drugs kept in apartment was relevant to motive and made
defendant’s identity as shooter more probable). Appellant asked Stone for a ride


murders, the empty cases for those two movies and the remote control covered in blood remained
at the trailer, and the player itself contained spots of blood consistent with William’s and
Collins’s DNA. The jury reasonably could have inferred that appellant wrongfully obtained the
combination player at or near the time of the murders. See Washington, 2018 WL 6684294, at
*4 (jury had evidence to reasonably infer injuries occurred morning complainant died even
though other evidence indicated some injuries could have been received earlier).

                                             16
 that night and Stone dropped him off one lot over from the trailer. Appellant lived
 within walking distance of the trailer. A rational fact-finder could conclude from
 the evidence that appellant had both motive and opportunity to commit the charged
 offense.

       Finally, the State presented evidence that appellant acted differently in the
 days following the murders. “A defendant’s conduct after the commission of a
 crime which indicates a ‘consciousness of guilt’ is admissible to prove that he
 committed the offense.” Matthews, 513 S.W.3d at 54 (quoting Ross v. State, 154
 S.W.3d 804, 812 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d)). Unlike
 almost every other day, appellant did not go to Bray’s house to hang out the day
 Williams’s and Collins’s bodies were found. Bray found that unusual, especially
 given that many of their friends were talking about what happened. When Bray
 did see appellant a few days later, appellant told him he was going to China to
 work for Zachary Construction because the police were trying to pin the murders
 on him. Appellant used the word “gaucho” in asking about the murders, even
 though at that time it was not well-known that Williams and Collins had been
 stabbed a significant number of times.       A defendant’s unusual conduct and
 statements after a murder are circumstances indicating guilt. See Washington,
 2018 WL 6684294, at *5.

       While no single piece of evidence may directly link appellant to Williams’s
 and Collins’s murders, the cumulative effect of the evidence and the reasonable
 inferences that can be drawn therefrom, viewed in the light most favorable to the
 jury’s verdict, supports the finding of appellant’s guilt. See Ingerson, 559 S.W.3d
 at 511. We overrule appellant’s second issue.

II.    The trial court did not err in instructing the jury on the law of parties.

       In his first issue, appellant argues the trial court erred by submitting jury
                                         17
instructions allowing a finding of guilt based on the law of parties. In reviewing
claims of charge error we first determine whether error exists. Ngo v. State, 175
S.W.3d 738, 744 (Tex. Crim. App. 2005) (en banc). If error exists, we then analyze
the error for harm. Id. We conclude the trial court did not err in submitting the
instructions but, even assuming error, there was no harm from their inclusion in the
charge.

          A trial court is required to instruct the jury on the law of parties if party
liability can legally apply to the offense at issue and is supported by the evidence.
In re State ex rel. Weeks, 391 S.W.3d 117, 124 (Tex. Crim. App. 2013). The State
does not have to prove it is correct regarding the defendant’s participation as a party;
instead, the State must only show that the evidence raises the issue to be entitled to
its submission. Id. at 125.      Under Section 7.02(a) of the Texas Penal Code, a
person is criminally responsible for 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.” Tex. Penal Code
§ 7.02(a)(2); Weeks, 391 S.W.3d at 124. Thus, to be entitled to an instruction of
liability under a law-of-parties theory, the State had to present evidence that
appellant acted with intent to promote or assist the commission of the offense by
soliciting, encouraging, aiding, or attempting to aid in the commission of the
murders. See Weeks, 391 S.W.3d at 124.

          Appellant argues the trial court erred in submitting the law of parties
because “[t]here was no State’s evidence to support the theory that the Appellant
acted with another.” We disagree. The State presented evidence of the presence of
DNA from an unknown individual under Williams’s fingernail. The State also
presented evidence that appellant wanted to obtain drugs from Collins that evening,
and that he asked others to help him obtain drugs from Collins. Police found the

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trailer in disarray, with contents of drawers pulled out and paneling pulled off the
wall as if someone were looking for drugs, and a DVD-VCR combo player that
appellant wanted was missing. After the murders, police located the VCR-DVD
combo in appellant’s possession. This evidence supports an inference, for the trier
of fact to determine, that appellant was at the trailer with another person during the
murders and either aided that person or solicited that person to help in the
commission of the charged offense. See Weeks, 391 S.W.3d at 125 (evidence that
defendant disarmed guard supported a conclusion that defendant aided another in
committing capital murder; weight and credibility of the evidence of participation
was for jury to decide).

        Even assuming for the sake of argument that the evidence did not
sufficiently raise the issue of appellant’s participation as a party, we conclude there
was no harm in the submission of the instructions. If the evidence “clearly supports
a defendant’s guilt as a principal actor, any error of the trial court in charging on the
law of parties is harmless.” Ladd v. State, 3 S.W.3d 547, 564-65 (Tex. Crim. App.
1999); Spiers, 543 S.W.3d at 898. This is because the jury “almost certainly” would
not rely on the law-of-parties instruction to arrive at its verdict and would instead
base its verdict on the evidence tending to show the appellant’s guilt as a principal
actor. Ladd, 3 S.W.3d at 565.

        As discussed in our disposition of appellant’s second issue, the evidence
sufficiently supported appellant’s identity as the principal actor in the murders. The
State did not focus on or even mention the law-of-parties instruction in its closing
argument, but rather focused on the evidence of appellant as the principal actor for
the offense. Under these circumstances, there is no actual harm in the submission of
the instruction.   Spiers, 543 S.W.3d at 899; see also Washington, 2018 WL
6684294, at *14.

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      We overrule appellant’s first issue.

                                      CONCLUSION

      Having overruled both of appellant’s issues, we affirm the trial court’s
judgment.




                                       /s/    Jerry Zimmerer
                                              Justice


Panel consists of Justices Jewell, Zimmerer, and Spain.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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