                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS


RICHARD RIVERA,                                           §
                                                                               No. 08-12-00160-CR
                                                          §
                                     Appellant,                                   Appeal from the
                                                          §
V.                                                                              396th District Court
                                                          §
THE STATE OF TEXAS,                                                          of Tarrant County, Texas
                                                          §
                                      Appellee.                                   (TC# 1262439R)
                                                          §

                                                  OPINION

          Richard Rivera appeals his convictions of murder (Count II), aggravated robbery (Count

III), and burglary of a habitation (Count IV). A jury acquitted Appellant of capital murder

(Count I), but found Appellant guilty of Counts II, III, and IV and assessed his punishment at

imprisonment for twenty-eight years’ on each count. The Texas Supreme Court transferred the

appeal from the Second Court of Appeals to the Eighth Court of Appeals pursuant to a docket

equalization order.1 We affirm.

                                           FACTUAL SUMMARY

          The evidence at trial showed that Appellant, Angel Villegas, and Jose Sifuentes forcibly

entered an apartment at approximately 4:00 a.m. on December 11, 2009 for the purpose of

robbing someone who had taken prescription pills and approximately $200 from Appellant

1
    We will decide the case in accordance with the precedent of the Second Court of Appeals. See TEX.R.APP.P. 41.3.
during a bad drug transaction. Appellant led his co-defendants to the wrong apartment and

Sifuentes shot and killed Francisco Tanguma who had no connection to Appellant or the drug

transaction.

           A few days before the murder, Blaine Williams, Reggie Dean, and Appellant drove to the

King’s Landing apartment complex in Arlington. Appellant was looking for the apartment of

someone who had ripped him off by giving him counterfeit money for prescription pills. After

Appellant and Dean returned to the car, Appellant told Williams they were going back to the

apartment later to rob the guy who had ripped him off and someone else was going to bring a

gun. Appellant was texting someone named Angel when he made the statement about someone

bringing a gun.

           In December of 2009, Appellant called Angel Villegas and told him that he had been “set

up” by a friend and robbed during a drug transaction. Appellant told Villegas that the robbers

had taken some prescription pills and approximately $200 from him. Appellant told Villegas

that he wanted to get back his property and he asked if Villegas was willing to participate in a

robbery with him for that purpose. Villegas told him that he would. Appellant told Villegas that

there were electronics, a large flat screen TV, and drugs in the apartment they were going to rob.

Villegas called “dibs” on the TV. Appellant also asked Villegas if he had a weapon. Villegas

replied that he had a military-type rifle2 and he would bring it. Villegas had recently shown

Appellant the same rifle. Villegas described the rifle as being black and approximately two feet

in length with a five inch clip.

           After getting off the phone, Villegas told his cousin, Jose Sifuentes, about his
2
    Witnesses at trial described the rifle as an AR-15.
                                                          -2-
conversation with Appellant and he asked Sifuentes to go with him. In another conversation,

Appellant told Villegas that he had another friend, Reggie, who was going to meet up with them

and he had his own weapon, a 9mm handgun. Based on his conversations with Appellant,

Villegas understood that the plan was to commit a robbery with a deadly weapon and Villegas

took his AR-15 with him “[j]ust in case . . . [s]omething was to happen.”

       Villegas and Sifuentes went to Appellant’s house and met with him for a few minutes.

Villegas had the AR-15 with him wrapped in a jacket, but Appellant saw it. They drove to the

apartment in a white Dodge Charger. Appellant drove, Villegas sat in the front passenger seat,

and Sifuentes sat in the back. As they drove, they discussed their plan that Appellant would kick

down the door, Sifuentes would enter first, and they would go inside and take whatever they

wanted. After they got to the apartment complex, they drove around while waiting for Reggie to

meet them, but after waiting for a few minutes they went to the apartment without him.

Appellant led them to the apartment and he kicked open the door. Sifuentes, armed with the AR-

15, went in first and Appellant followed him. Villegas heard what sounded like someone getting

out of bed and Sifuentes entered the bedroom and fired the AR-15. Villegas saw Sifuentes

standing over the victim, Francisco Tanguma, with the AR-15 pointed at him while demanding

money and drugs. Sifuentes also kicked Tanguma above the waist one time. Tanguma told

Sifuentes he did not know what they were talking about. Villegas looked around the apartment

for anything valuable and after speaking with Appellant they decided to take a pair of large

speakers. Appellant and Villegas loaded the speakers into the car while Sifuentes stood over the

victim. Sifuentes took Tanguma’s wallet and cell phone. After they returned to Appellant’s


                                              -3-
house, Villegas told Appellant to keep his mouth shut and put it behind him. Villegas got rid of

the cell phone, the speakers, and the rifle.

       A couple of days after the murder, Appellant talked to Blaine Williams. Appellant said

they went to the apartment and after he kicked the door open, “Angel’s homeboy” ran inside and

shot someone in the leg with the AR-15. Williams talked to Appellant again after learning that

Tanguma had died and he recalled that Appellant showed no emotion and appeared “normal.”

                                        CHARGE ERROR

       In his first two issues, Appellant argues that the trial court erred by failing to instruct the

jury on assault with bodily injury as a lesser-included offense of murder and theft as a lesser-

included offense of aggravated robbery because he did not know that his co-defendant Sifuentes

had the gun.

                               Relevant Law and Standard of Review

       A trial court’s decision to submit or deny an instruction on a lesser-included offense is

reviewed for an abuse of discretion. Threadgill v. State, 146 S.W.3d 654, 666 (Tex.Crim.App.

2004). An offense is a lesser-included offense if:

       (1) it is established by proof of the same or less than all the facts required to
           establish the commission of the offense charged;

       (2) it differs from the offense charged only in the respect that a less serious injury
           or risk of injury to the same person, property, or public interest suffices to
           establish its commission;

       (3) it differs from the offense charged only in the respect that a less culpable
           mental state suffices to establish its commission; or

       (4) it consists of an attempt to commit the offense charged or an otherwise
           included offense.

                                                -4-
       TEX.CODE CRIM.PROC.ANN. art. 37.09 (West 2006). We utilize a two-pronged test to

determine whether a charge on a lesser-included offense should be given: (1) Is the requested

charge for a lesser-included offense of the charged offense? (2) Is there trial evidence that

supports giving the instruction to the jury? Rice v. State, 333 S.W.3d 140, 144 (Tex.Crim.App.

2011); McKinney v. State, 207 S.W.3d 366, 370 (Tex.Crim.App. 2006). If facts are elicited

during trial that raise an issue of the lesser-included offense, and the charge is properly

requested, then a charge must be given. Ross v. State, 861 S.W.2d 870, 877 (Tex.Crim.App.

1993)(op. on reh’g).

                                             Assault

       We begin by examining Appellant’s contentions related to the lesser-included offense of

assault with bodily injury. The first step is to determine whether the lesser-included offense is

included within the proof necessary to establish the offense charged. Rice, 333 S.W.3d at 144;

Hall v. State, 225 S.W.3d 524, 531 (Tex.Crim.App. 2007). This is a question of law, and it does

not depend on the evidence to be produced at trial. Rice, 333 S.W.3d at 144.

       Texas has adopted the cognate pleadings approach to the first step of the lesser included

offense analysis: the elements and the facts alleged in the charging instrument are used to find

lesser-included offenses. Rice, 333 S.W.3d at 144. The first prong is satisfied if the indictment

for the greater-inclusive offense either: (1) alleges all of the elements of the lesser-included

offense; or (2) alleges elements plus facts (including descriptive averments, such as non-statutory

manner and means, which are alleged for purposes of providing notice) from which all of the

elements of the lesser-included offense may be deduced. Ex parte Watson, 306 S.W.3d 259, 273


                                               -5-
(Tex.Crim.App. 2009). We will examine the statutory elements of the charged offense as

modified by the indictment and determine whether the elements of the claimed lesser included

offense are functionally the same as or less than those required to prove the charged offense.

Hayward v. State, 158 S.W.3d 476, 478-79 (Tex.Crim.App. 2005).

       Appellant asserts that assault is a lesser-included offense of murder under Section

19.02(b)(2).   Paragraph Two of Count II charged Appellant with murder under Section

19.02(b)(2) by alleging that Appellant intentionally, with the intent to cause serious bodily injury

to Francisco Tanguma, committed an act clearly dangerous to human life, namely, by shooting

him with a firearm, which caused the death of Francisco Tanguma. See TEX.PENAL CODE ANN.

§ 19.02(b)(West 2011). A person commits assault if he intentionally, knowingly, or recklessly

causes bodily injury to another. TEX.PENAL CODE ANN. § 22.01(a)(1)(West Supp. 2014). We

conclude that the statutory elements of assault are included within the offense of murder under

Section 19.02(b)(2) because the two offenses have the same culpable mental state and bodily

injury can be a subset of serious bodily injury. Hayward, 158 S.W.3d at 479 (“It is possible,

under the right set of circumstances, for the statutory elements of assault to be included within a

murder because the two offenses could have the same culpable mental state and bodily injury can

be a subset of serious bodily injury.”).

       The second step of the lesser-included-offense analysis is to determine if there is some

evidence in the record which would permit a jury to rationally find that, if the defendant is guilty,

he is guilty only of the lesser-included offense. Rice, 333 S.W.3d at l45; Mathis v. State, 67

S.W.3d 918, 925 (Tex.Crim.App. 2002). In other words, the evidence must establish the lesser-


                                                -6-
included offense as a valid, rational alternative to the charged offense. Rice, 333 S.W.3d at 145;

Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2000).

       Appellant’s argument is limited to his assertion that he did not know Sifuentes had a

firearm, and therefore, the jury could have rationally found him not guilty of murder. The

court’s charge included an instruction on the law of parties.         Further, the court’s charge

instructed the jury that “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.” See TEX.PENAL CODE ANN. § 7.02(b)(West 2011). We understand

Appellant to argue that, since he did not know Sifuentes had a gun, the jury could have found

that Appellant could not have anticipated that a murder would occur as a result of carrying out

the conspiracy to commit burglary of a habitation and robbery. Even if we assume for the sake

of argument that there is evidence supporting Appellant’s claim he did not know Villegas or

Sifuentes had a gun, he does not direct our attention to any evidence showing he is guilty only of

assault causing bodily injury. In fact, it is unclear from Appellant’s brief the exact nature of the

assault causing bodily injury he claims the jury should have been allowed to consider. There is

evidence that Sifuentes kicked the victim after he shot him, but this evidence does not warrant

submission of a lesser-included offense of assault because the conduct falls outside of the

assaultive conduct alleged in the indictment, namely, shooting the victim with a firearm. See

Hayward, 158 S.W.3d at 479 (where indictment alleged defendant caused the victim’s death by


                                               -7-
stabbing him with a knife or piece of glass, defendant’s claim that she punched the victim did not

raise the lesser-included offense of assault causing bodily injury). The trial court did not err by

refusing to instruct the jury on the lesser-included offense of assault. Issue Two is overruled.

                                                       Theft

         Appellant next argues that he was entitled to an instruction on theft. Theft is a lesser-

included offense of aggravated robbery.                   See Jacob v. State, 892 S.W.2d 905, 909

(Tex.Crim.App. 1995); Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994). The only

issue, then, is whether the record contains some evidence to support an instruction for theft.

         Count III of the indictment charged Appellant with aggravated robbery under Section

29.03(a)(2) by alleging that he intentionally or knowingly, while in the course of committing

theft of property3 and with intent to obtain or maintain control of property, caused bodily injury

to Francisco Tanguma by shooting him with a firearm4 and Appellant used or exhibited a deadly

weapon, namely, a firearm.5 Thus, the indictment alleges Appellant committed aggravated

robbery by committing robbery under Section 29.02(a)(1) and by using or exhibiting a deadly

weapon. The trial court instructed the jury on the law of parties and the application paragraph

permitted the jury to find Appellant guilty of aggravated robbery as a party. Appellant again

asserts that he did not know Sifuentes had a firearm, and therefore, the jury could have rationally

3
  A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property.
TEX.PENAL CODE ANN. § 31.03 (West Supp. 2014).
4
  A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the
property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or
knowingly threatens or places another in fear of imminent bodily injury or death. TEX.PENAL CODE ANN.
§ 29.02(a)(1)-(2)(West 2011).
5
 A person commits aggravated robbery if he commits robbery as defined by Section 29.02 and he uses or exhibits a
deadly weapon. TEX.PENAL CODE ANN. § 29.03(a)(2)(West 2011).
                                                       -8-
found him not guilty of aggravated robbery.

       In support of his argument that Appellant did not know Villegas or Sifuentes had a gun,

Appellant cites to the following: Danielle Friend was confused about who had the gun and shot

Tanguma; Sifuentes came along at the request of Villegas, not Appellant; Appellant drove the

vehicle they took to the apartment and Sifuentes sat in the back seat with the gun; Villegas had

the gun concealed in a jacket and Sifuentes removed it from the jacket before they got out of the

car; Villegas testified Appellant saw the rifle but he later said he “assumed” Appellant knew they

had the gun, and he did not actually see Appellant observe him or Sifuentes with the gun;

Appellant kicked the apartment door open and Sifuentes entered first; and Villegas was shocked

when Sifuentes shot Tanguma because he and Appellant had never discussed shooting anyone.

As observed by the State, the evidence must rise to a level that a rational jury could find that if

Appellant is guilty, he is guilty only of the lesser-included offense. Cavazos v. State, 382

S.W.3d 377, 385 (Tex.Crim.App. 2012).         Meeting this threshold requires more than mere

speculation—it requires affirmative evidence that both raises the lesser-included offense and

rebuts or negates an element of the greater offense. Id. The evidence relied on by Appellant

does not affirmatively show Appellant did not know Sifuentes had a gun when they entered the

apartment and it does not rise above the level of requiring the jury to speculate regarding

Appellant’s knowledge. Because the evidence does not permit a rational jury to find Appellant is

guilty of only the lesser-included offense, Appellant was not entitled to an instruction on theft.

Issue One is overruled.

                                   MOTION TO SUPPRESS


                                               -9-
       In Issue Three, Appellant contends that the trial court erred by denying his motion to

suppress a pair of shoes seized during a search of his bedroom. Appellant argues that he did not

consent to a search of the bedroom where the officers found the shoes.

       The trial court conducted a hearing outside the presence of the jury to determine the

admissibility of a pair of shoes taken by police officers from Appellant’s bedroom. Tommy Le

Noir, a homicide detective with the Arlington Police Department, obtained an arrest warrant for

Appellant and he and other police officers went to an address in Grand Prairie, Texas on

December 12, 2009 to arrest Appellant. Detective Le Noir spoke with Appellant and asked him

for consent to search his bedroom. Appellant consented to a search of his bedroom and he

signed a written consent to search form. Appellant initially directed the officers to a bedroom

and they entered it but did not find anything of evidentiary value. One of the other officers

noticed the adjacent bedroom door had a sign on it which stated “Trick Rick” and she could

smell an odor of marihuana emanating from that room. Detective Le Noir spoke to Appellant

and asked whether he had lied about which bedroom was his. Appellant admitted he had lied

and said the other bedroom was his. The officers entered that bedroom and found a pair of black

shoes which appeared to be consistent with the footprint on the door to Tanguma’s apartment.

At the conclusion of the hearing, Appellant objected to the admission of his shoes on the ground

they were seized without a warrant and without his consent. The trial court overruled that

objection.

                            Standard of Review and Applicable Law

       We review a ruling on a motion to suppress using a bifurcated standard of review.


                                             - 10 -
Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App. 2010); Guzman v. State, 955 S.W.2d 85,

87-91 (Tex.Crim.App. 1997). An appellate court must give almost total deference to the trial

court’s assessments of historical fact and conclusions of law with respect to mixed questions of

law and fact that turn on credibility and demeanor. State v. Saenz, 411 S.W.3d 488, 494

(Tex.Crim.App. 2013); State v. Ortiz, 382 S.W.3d 367, 372 (Tex.Crim.App. 2012). In contrast,

an appellate court engages in a de novo review of mixed questions of law and fact that do not

turn on credibility and demeanor. Saenz, 411 S.W.3d at 494; Ortiz, 382 S.W.3d at 372.

       The Fourth Amendment to the United States Constitution guarantees people the right to

be “secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures . . . .” U.S. CONST. amend. IV. Under the Fourth and Fourteenth Amendments, a search

conducted without a warrant based on probable cause is “per se unreasonable . . . subject only to

a few specifically established and well-delineated exceptions.” Meekins v. State, 340 S.W.3d

454, 458 (Tex.Crim.App. 2011), quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct.

2041, 2043, 36 L.Ed.2d 854 (1973). One of the recognized exceptions is a search conducted

with a person’s voluntary consent. Meekins, 340 S.W.3d at 458, citing Schneckloth, 412 U.S. at

219, 93 S.Ct. at 2043-44; Guevara v. State, 97 S.W.3d 579, 582 (Tex.Crim.App. 2003). To show

that the search was made with the property owner’s consent, the State must prove by clear and

convincing evidence, based on the totality of the circumstances, that the owner gave consent

freely and voluntarily. Reasor v. State, 12 S.W.3d 813, 818 (Tex.Crim.App. 2000).

                                Scope of the Consent to Search

       Appellant argues that he consented only to a search of the bedroom he initially identified


                                             - 11 -
to the officers as his and he did not consent to a search of his bedroom. This argument raises a

question regarding the scope of his consent to search and whether the officers exceeded the

scope of the consent by searching Appellant’s bedroom.

       The standard for measuring the scope of a suspect’s consent under the Fourth

Amendment is that of “objective” reasonableness-what would the typical reasonable person have

understood by the exchange between the officer and the suspect? Florida v. Jimeno, 500 U.S.

248, 251, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). Because the test is one of objective

reasonableness, a court reviewing the totality of the circumstances of this particular interaction

does so without regard for the subjective thoughts or intents of either the officer or the citizen.

State v. Weaver, 349 S.W.3d 521, 526 (Tex.Crim.App. 2011). The scope of a search is usually

defined by its expressed object. Weaver, 349 S.W.3d at 526. If police rely on consent as the

basis for a warrantless search, “they have no more authority than they have apparently been

given by the consent.” Id., quoting 4 Wayne R. LaFave, SEARCH AND SEIZURE § 8.1(c) at 19 (4th

ed. 2004). While it is important to take into account any limitations on the scope of the search, a

person’s silence in the face of an officer’s further actions may imply consent to that further

action. Id.

       It is undisputed that Appellant consented to a search of “his bedroom” even though he

subsequently misdirected the officers to a bedroom which was not his. Under the objective

reasonableness test, the typical reasonable person would have understood that he gave the

officers consent to search “his bedroom,” not the bedroom of someone else in the residence. The

trial court did not err by denying Appellant’s motion to suppress and overruling his objections to


                                              - 12 -
admission of the evidence. Issue Three is overruled. Having overruled each issue present on

appeal, we affirm the judgment of the trial court.



October 8, 2014
                                              ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rivera, J. Not Participating

(Do Not Publish)




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