                                    NO. 12-12-00424-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

RAFAEL ORTA, JR.,                                §      APPEAL FROM THE 159TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      ANGELINA COUNTY, TEXAS

                                    MEMORANDUM OPINION
       Rafael Orta, Jr. appeals his conviction for capital murder, for which he was assessed a
sentence of imprisonment for life without parole. Appellant raises one issue challenging the
legal sufficiency of the evidence supporting the conviction. We affirm.


                                          BACKGROUND
       Appellant was charged by indictment with capital murder and pleaded “not guilty.” The
matter proceeded to a jury trial.
       The evidence at trial showed that on February 7, 2012, Appellant and four other men
went to the home of a drug dealer, Robert Darnell Bennett, to rob him at gunpoint. In the course
of the robbery attempt, one of the men shot Bennett twice in the torso, killing him.
       Ultimately, the jury found Appellant “guilty” of capital murder. The trial court assessed
his punishment at imprisonment for life without parole. This appeal followed.


                                    EVIDENTIARY SUFFICIENCY
       In his sole issue, Appellant argues that the evidence is legally insufficient to support a
finding that any of the men intended to kill Bennett. He alternatively argues that even if the
shooter intended to kill Bennett, the evidence against Appellant is insufficient because it fails to
show that he knew of the shooter’s intent.
Standard of Review and Governing Law
       The Jackson v. Virginia1 legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional
minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a
criminal conviction. See Jackson, 443 U.S. at 315–16, 99 S. Ct. at 2786–87; see also Escobedo
v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a
legal sufficiency challenge is whether any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at
2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is
examined in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at
2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in
rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102
S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).
       The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include one that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict
the State’s theories of liability, and adequately describes the particular offense for which the
defendant is tried.” Id.
       To prove Appellant guilty of capital murder by conspiring to rob Bennett, the State was
required to prove that he conspired to rob Bennett; that during the attempt, a conspirator
intentionally killed Bennett; that the killing was in furtherance of the robbery; and that Appellant
should have anticipated the killing. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West 2011); TEX.
PENAL CODE ANN. § 7.02(b) (West 2011).




       1
           443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979).


                                                        2
Analysis
       Intent is a fact question to be resolved by the trier of fact based on all of the facts and
circumstances in evidence. Hemphill v. State, 505 S.W.2d 560, 562 (Tex. Crim. App. 1974).
“The jury may infer the intent to kill from the use of a deadly weapon unless it would not be
reasonable to infer that death or serious bodily injury could result from the use of the weapon.”
Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Intent may also be inferred from
the wounds inflicted. Hemphill, 505 S.W.2d at 562.
       Viewed in the light most favorable to the jury’s verdict, the evidence in this case shows
that Appellant and his associate Jacob Woodard began planning to rob Bennett while at
Appellant’s house. Appellant, Woodard, and three others then drove to two different places and
obtained weapons for use in the robbery: a rifle and a .45-caliber pistol. Both guns were loaded.
Once at Bennett’s house, Appellant and Woodard called Bennett to tell him that they were there.
Appellant and three other men exited the vehicle and approached the house. Some of the men
wore masks and gloves. Woodard went inside the fenced area carrying the pistol. The other men
heard a gunshot, ran back to the vehicle, and fled the scene. None of the men called for help.
Bennett was subsequently found dead with his left pants pocket pulled out. He had been shot
twice, once from outside the residence and once from inside.         One of the bullets entered
Bennett’s left side and traveled through his spleen and kidney.        The other bullet entered
Bennett’s torso near the armpit area and traveled through his lung and heart. Both gunshot
wounds were potentially fatal.
       The jury could have reasonably inferred from Woodard’s use of a deadly weapon that he
intended to kill Bennett. See Jones, 944 S.W.2d at 647. It could have further inferred this intent
from the fact that he was shot more than once, and from the fact that both shots were potentially
fatal. See Hemphill, 505 S.W.2d at 562. The State had no burden to show that Appellant
intended to kill Bennett, or that he knew of Woodard’s intent, but simply that the murder was
committed in furtherance of the robbery and should have been anticipated as a result of carrying
it out. See TEX. PENAL CODE ANN. § 7.02(b). Appellant concedes that the evidence shows he
conspired to rob Bennett. Appellant should have anticipated that an intentional murder might
occur in furtherance of the conspiracy to rob the drug dealer at gunpoint. See Whitmire v. State,
183 S.W.3d 522, 526-27 (Tex. App.–Houston [14th Dist.] 2006, pet. ref’d) (murder resulting
from armed robbery of drug dealer is “perfectly foreseeable”).



                                                3
         Based on our review of the record, we conclude that a rational trier of fact could have
found Appellant guilty beyond a reasonable doubt. We therefore hold that the evidence is
sufficient to support the jury’s verdict. Appellant’s sole issue is overruled.


                                                    DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.


                                                                SAM GRIFFITH
                                                                   Justice

Opinion delivered January 8, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




                                                           4
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                           JANUARY 8, 2014


                                          NO. 12-12-00424-CR


                                        RAFAEL ORTA, JR.,
                                             Appellant
                                                V.
                                       THE STATE OF TEXAS,
                                             Appellee


                                 Appeal from the 159th District Court
                        of Angelina County, Texas (Tr.Ct.No. 2012-0233)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Sam Griffith, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J..
                     THE STATE OF TEXAS
                        MANDATE
                    *********************************************


TO THE 159TH DISTRICT COURT OF ANGELINA COUNTY, GREETING:

        Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 5th
day of January, 2014 , the cause upon appeal to revise or reverse your judgment between

                               RAFAEL ORTA, JR., Appellant

                       NO. 12-12-00424-CR; Trial Court No. 2012-0233

                                     By per curiam opinion.

                              THE STATE OF TEXAS, Appellee

was determined; and therein our said Court made its order in these words:

      “THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the
same being considered, it is the opinion of this court that there was no error in the judgment.

       It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court
below be in all things affirmed, and that this decision be certified to the court below for
observance.”

        WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals
for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly
recognized, obeyed, and executed.

        WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court
of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of
Tyler, this the xx day of January, 2014.


                       CATHY S. LUSK, CLERK


                       By: _______________________________
                           Chief Deputy Clerk
