Opinion issued July 19, 2018




                                     In The

                               Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                               NO. 01-17-00320-CR
                           ———————————
                  GEORGE RAFAEL AGUILAR, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 174th District Court
                           Harris County, Texas
                       Trial Court Case No. 1497176


                       MEMORANDUM OPINION

      A jury convicted appellant, George Rafael Aguilar, of murder, and the trial

court sentenced him to sixty-seven years’ confinement in the Institutional Division

of the Texas Department of Criminal Justice. In his sole point of error, appellant
contends that the evidence is legally insufficient to establish his guilt as a party.to

the offense of murder. We affirm.

                                     Background

      On December 4, 2012, Officer Clinton Shafer with the Pasadena Police

Department responded to a dispatch call regarding a shooting. When he arrived at

the scene, Officer Shafer observed a maroon Scion parked in front of a Houston

Garden Center, with both front doors open.

      When he approached the vehicle, Officer Shafer saw four individuals inside:

Joe Aguilar, who was driving, Yolanda Aguilar, his wife, slumped over on his

shoulder, three-year old Joe Aguilar, III, behind the driver’s seat, and Kimberly

Aguilar, the child’s mother, in the rear passenger seat. Officer Shafer testified that

Yolanda was not moving and did not appear to be breathing. Based on Joe’s

information, Officer Shafer broadcast a call for a Jeep Cherokee occupied by

appellant and his brother, Adrian Aguilar.

      Detective Sylvia Trevino with the Pasadena Police Department, who assisted

in the investigation, testified that she went to the La Quinta hotel across the street to

determine if there was any video surveillance of the incident. Officer Trevino

recovered video footage which showed appellant’s SUV following Joe’s vehicle.

      Detective Raymond Sorrell with the Pasadena Police Department testified that

he and his partner received information that the suspects’ vehicle might be at a trailer

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park in Pasadena or La Porte and they began checking trailer parks for a brown Jeep

Cherokee. After the suspect’s vehicle was located, Officer Sorrell followed the Jeep

Cherokee as it left the trailer park. He observed a female, later identified as Elaine

Garza, driving the vehicle and testified that she later pulled into a Valero gas station

in La Porte. Officer Sorrell testified that La Porte police officers arrived at the gas

station and instructed the driver to exit the vehicle with her hands up and walk toward

the officers. He further testified that as the female was complying, appellant came

around from behind the gas station with his hands up, as if to surrender, and yelled

to get the officers’ attention. Officer Michael Cooper, Detective Sorrell’s partner,

testified that the man who came from behind the building with his hands up said,

“I’m George. I’m the one you’re looking for.” Appellant was then handcuffed and

placed in the back of a police car.

      Elaine Garza testified at trial that she and appellant had been living together

in appellant’s trailer for five years at the time of the shooting. Garza testified that,

on the morning of the shooting, appellant had returned to the trailer and was upset

after seeing Joe and Yolanda, Garza’s aunt. Appellant told Garza that they had

laughed at him and that he was “tired of it.” Garza testified that she made breakfast

while appellant went to the trailer next door to get Adrian, his brother. After

breakfast, appellant told Garza that he and Adrian were going to town, and they left

together in appellant’s Jeep. Later, Garza’s mother called her, crying, and told her

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that Yolanda had been killed. Garza testified that she called appellant to tell him

what happened, and that appellant was not upset and told her that he did not know

anything. Appellant and Adrian returned home and later left again in another

vehicle.

      Sometime later, appellant called Garza and told her to pick him up at a Valero

gas station and bring some clothes. When she arrived at the gas station, appellant

asked her to return to the trailer and get some bullets from the living room cabinet.

Garza returned to the trailer but was unable to get in because she did not have the

key. When Garza called appellant to tell him, appellant told her to return to the gas

station. As Garza was driving the Jeep back to the gas station, she noticed a La Porte

police car behind her with its siren activated. Garza called appellant back to tell him

about the police car, and appellant told her to continue driving to the gas station.

When she arrived, police instructed her to get on the ground. Appellant then

emerged and was arrested.

      Joe Aguilar testified that he and appellant had had a verbal altercation on the

morning of the shooting. Joe testified that he was driving behind appellant when

appellant stopped in the middle of the intersection and began “cussing [him] out real

bad.” As Joe began to drive around him, appellant said, “I’m going to cap you, son-

of-a-bitch, mother fucker.” Joe then told appellant, “fuck you,” and Yolanda said,




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“Let’s go, let’s go.” Joe testified that appellant then gestured to him which Joe

understood as a threat that appellant was going to shoot him.

      A short time later, Joe and Yolanda went to pick up their daughter-in-law,

Kimberly, and her son, “Baby Joe,” and take Kimberly to work. As they were

driving, Joe noticed that appellant was following them in his Jeep. Joe testified that

appellant followed him for at least fifteen minutes and then drove up on the driver’s

side of Joe’s car. Joe then saw Adrian, who was in the backseat of appellant’s Jeep,

hang out of the Jeep and fire four or five rounds at the driver’s side of Joe’s vehicle.

After the shots were fired, appellant looked back at them before speeding up and

driving away. When the police arrived, Joe told them that appellant and Adrian had

done it.

      Detective Michael Young with the Pasadena Police Department testified that

the Jeep Cherokee was registered to appellant. After appellant was arrested, he was

taken back to the trailer and signed a consent form to search his trailer.

      Detective Jonathan Jernnigan with the Pasadena Police Department testified

that he participated in the search of appellant’s trailer. In the course of the search,

Detective Jerrnigan found a .410 shotgun, one box of .25-caliber ammunition, and

two boxes of .22-caliber ammunition.

      Officer Matthew Britain with the Pasadena Crime Scene Unit arrived at the

crime scene and processed Joe’s vehicle. He observed a bullet hole in the rear

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passenger window, and he recovered one bullet from the driver’s side door pillar and

one from the cargo area of the vehicle. Officer Britain also took DNA swabs from

several locations in the vehicle.

      Diana Wolfshol, a DNA analyst with the Harris County Institute of Forensic

Sciences (HCIFS), analyzed the DNA swabbings taken from appellant’s vehicle.

She testified that appellant could not be excluded from the DNA profile found on

the gear shift of the Jeep Cherokee.

      Jason Schroeder, an HCIFS trace evidence analyst, analyzed the results of

appellant’s gunshot residue tests. Schroeder testified that the samples taken from

appellant’s left hand, shorts, shirt, and a black plastic bag recovered from the cargo

area of the Jeep revealed particles consistent with gunshot residue.

      Dawn LaPorte, an HCIFS firearms examiner, examined the five projectiles

recovered during the investigation and determined that they were all fired from the

same .25-caliber handgun. She testified that the box of .25-caliber ammunition

recovered from appellant’s trailer contained bullets with the same weight and

characteristics as the five projectiles recovered during the investigation.

      Dr. Dwayne Wolf, deputy chief medical examiner for Harris County, testified

that the results of the autopsy showed that the complainant died from multiple

gunshot wounds.




                                           6
                             Sufficiency of the Evidence

      In his sole point of error, appellant contends that the evidence is legally

insufficient to establish his guilt as a party to murder. Specifically, he argues that

there was insufficient evidence of a prior or contemporaneous plan between

appellant and the actual shooter to commit the complainant’s murder. He further

argues that there was no evidence that appellant did anything to assist the

commission of the offense.

   A. Standard of Review

         We review appellant’s challenge to the sufficiency of the evidence under the

standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). See

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine all of

the evidence in the light most favorable to the jury’s verdict to determine whether

“any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789 (emphasis

in original); see also Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

“Each fact need not point directly and independently to the guilt of the appellant, as

long as the cumulative force of all the incriminating circumstances is sufficient to

support the conviction.” Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App.

2011).




                                          7
      The jury may reasonably infer facts from the evidence presented, credit the

witnesses it chooses, disbelieve any or all of the evidence or testimony proffered,

and weigh the evidence as it sees fit. See Canfield v. State, 429 S.W.3d 54, 65 (Tex.

App.—Houston [1st Dist.] 2014, pet. ref’d). An appellate court determines “whether

the necessary inferences are reasonable based upon the combined and cumulative

force of all the evidence when viewed in the light most favorable to the verdict.”

Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). In viewing the

record, direct and circumstantial evidence are treated equally. Id. at 13. An appellate

court presumes that the factfinder resolved any conflicting inferences in favor of the

verdict and defers to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.

   B. Applicable Law

      “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 by both.” TEX. PENAL CODE ANN. § 7.01 (West 2011). 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.” Id. § 7.02(a)(2). Therefore,

“to establish liability as a party, the State must show that, at the time of the

commission of the offense, the parties were acting together, each contributing in

some way to the execution of their common purpose.” Murchison v. State, 93

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S.W.3d 239, 256 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (citing Ex parte

Welborn, 785 S.W.2d 391, 394 (Tex. Crim. App. 1990) (en banc)).

      When a party is not the “primary actor,” the State must prove conduct

constituting an offense plus an act by the defendant done with the intent to promote

or assist such conduct. Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985) (en

banc); Miller v. State, 83 S.W.3d 308, 313 (Tex. App.—Austin 2002, pet. ref’d).

Evidence is sufficient to sustain a conviction under the law of parties if it shows that

the defendant was physically present at the commission of the offense and

encouraged the commission of the offense either by words or other agreement.

Tarpley v. State, 565 S.W.2d 525, 529 (Tex. Crim. App. [Panel Op.] 1978); Hoang

v. State, 263 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Since

an agreement between parties to act together in common design can seldom be

proven by words, the State often must rely on the actions of the parties, shown by

direct or circumstantial evidence, to establish an understanding or a common design

to commit the offense. Miller, 83 S.W.3d at 314. The agreement, if any, must be

made before or contemporaneous with the criminal event, but in determining

whether one has participated in an offense, the court may examine the events

occurring before, during, and after the commission of the offense. Beier, 687 S.W.2d

at 3–4; Miller, 83 S.W.3d at 314. Circumstantial evidence may suffice to show that

one is a party to an offense. Wygal v. State, 555 S.W.2d 465, 469 (Tex. Crim. App.

                                           9
1977); Miller, 83 S.W.3d at 314. While mere presence at the scene, or even flight, is

not enough to sustain a conviction, such facts may be considered in determining

whether an appellant was a party to the offense. Valdez v. State, 623 S.W.2d 317,

321 (Tex. Crim. App. [Panel Op.] 1979); Hoang, 263 S.W.3d at 22.

   C. Analysis

      Viewing the evidence in the light most favorable to the verdict, a rational trier

of fact could have found that appellant was a party to the offense of murder. The

evidence shows that appellant had a verbal altercation with Joe on the morning of

the shooting. During the altercation, appellant cussed at Joe and told him, “I’m going

to cap you, son-of-a-bitch, mother fucker.” Appellant then gestured at Joe which

Joe understood as a threat that appellant was going to shoot him. See Jaggers v.

State, 125 S.W.3d 661, 669–70 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d)

(finding testimony that defendant had talked about killing complainant was

admissible to show his motive and intent to kill her). After appellant returned to his

trailer, he was upset and told Garza that Joe and Yolanda had laughed at him and

that he was “tired of it.” See Miller, 83 S.W.3d at 310, 312 (finding evidence

sufficient to sustain defendant’s conviction as party to offense of deadly conduct

where, among other things, evidence supported inference that shooter and defendant

might have been angry or frustrated at driver of other car for swerving at defendant’s

Jeep and that shooter had seen driver of other car laughing at them). Appellant then

                                         10
had a conversation with Adrian in appellant’s trailer and they left together in

appellant’s Jeep.

         Later, while Joe and Yolanda were driving Kimberly to work, Joe saw

appellant driving behind him. Appellant followed them for at least fifteen minutes

before driving up on Joe’s driver’s side. Adrian, who was in the backseat of

appellant’s Jeep, was hanging out and fired four or five rounds at the driver’s side

of Joe’s vehicle, killing Yolanda. After the shots were fired, appellant looked back

at them before speeding up and driving away. The physical evidence also shows

gunshots struck the driver’s side of Joe’s vehicle and multiple gunshot wounds to

Yolanda. See Hoang, 263 S.W.3d at 23 (holding evidence was legally sufficient to

sustain defendant’s conviction for murder as party to offense where evidence

established defendant assisted shooter by giving him loaded firearm that killed

complainant, driving his car parallel to, close to, and at about same speed as

complainant’s car, and enabling shooter to be in position to shoot complainant

accurately and repeatedly); Miller, 83 S.W.3d at 314 (finding evidence legally

sufficient to establish defendant as party to offense of deadly conduct resulting in

complainant’s death where witnesses testified that defendant pursued victim’s car

and pulled up along left side of her car “very slowly” before passenger fired fatal

shot).




                                        11
      The jury also heard testimony that appellant asked Garza to go to the trailer

and get the bullets from the living room cabinet. The jury could infer this to be an

effort to cover up the crime. See Hoang, 263 S.W.3d at 23 (finding evidence

showing that defendant drove shooter away from location after shooting and tried to

cover up crime by instructing shooter’s girlfriend not to tell anyone what had

happened supported defendant’s conviction to murder as party to offense).

      Appellant contends that this case is similar to Gross v. State, 380 S.W.3d 181

(Tex. Crim. App. 2012).      There, the defendant was convicted of murder and

sentenced to ten years’ in prison. See id. at 183. The court of appeals reversed the

judgment of the trial court and rendered a judgment of acquittal. See id. On petition

for discretionary review, the Court of Criminal Appeals affirmed the court of

appeals’s judgment. See id. at 189. It held that the court of appeals had properly

determined that the evidence presented against the defendant was insufficient to

support his conviction for murder under the law of parties. See id. at 188. In

particular, it noted that although the defendant was present at the crime scene and

possessed the murder weapon, there was no evidence that (1) the defendant had

anticipated that the person he was with would shoot the victim, (2) the defendant had

assisted or encouraged the shooting, or (3) the defendant and the shooter had a prior

or contemporaneous plan to commit the murder. See id. at 186–88.




                                         12
      Gross is distinguishable from the present case. As discussed above, appellant

made statements and took actions before, during, and after the shooting that

demonstrates that he and Adrian were working together to accomplish their common

purpose of shooting at Joe and Yolanda, and ultimately killing Yolanda. See Beier,

687 S.W.2d at 3–4 (noting that, in determining whether one has participated in

offense, court may examine events occurring before, during, and after commission

of offense). Viewed cumulatively, we conclude that a rational jury could have found

beyond a reasonable doubt that appellant encouraged and aided Adrian to commit

the offense of murder. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Williams,

235 S.W.3d at 750.

      Accordingly, we hold that the evidence is legally sufficient to sustain

appellant’s conviction for murder as a party to the offense. Appellant’s sole point

of error is overruled.

                                   Conclusion

      We affirm the trial court’s judgment.




                                              Russell Lloyd
                                              Justice

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).
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