COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-15-00134-CR
JACOB GALEN EVERETT APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM 371ST DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1363213D
MEMORANDUM OPINION 1
Appellant Jacob Galen Everett appeals from his conviction for capital
murder and life sentence. Because we conclude that the evidence was
sufficient, the conviction was not double-jeopardy barred, and the trial court did
not abuse its discretion in the admission of evidence, we affirm the trial court’s
capital-murder judgment as modified. See Tex. R. App. P. 43.2(b).
1 See Tex. R. App. P. 47.4. I. BACKGROUND
Randy Pacheco was the manager of a shoe store in Arlington. The store
had a security camera monitoring the front customer area but had no camera in
the back stock room. The owner of the store, Douglas Reinwald, trained his
employees to comply with any robber’s demands and to call the police only after
the robber left the store.
On February 25, 2014, at approximately 12:00 p.m., Everett entered the
store to try on a pair of boots but left without buying them because they were too
expensive. Everett later admitted that he went to the store that day to look for
security cameras because he planned to commit a robbery at the store. At
1:50 p.m., Officer Brett Worman of the Arlington Police Department was
dispatched to the shoe store after a 9-1-1 caller reported hearing shots fired and
noticing that the front door was locked and the back door was ajar, which was
unusual. Worman entered the store through the back door and saw Pacheco
lying face down in a pool of blood. Pacheco had a single gunshot wound to his
face and had no defensive wounds. He had been shot from more than two feet
away—not at point-blank range. No one else was in the store, the cash register
drawer was open, and there were no signs of a struggle in the store. A crime-
scene investigator found a shell casing from a nine-millimeter gun outside the
store’s back door. Reinwald determined that approximately $200 had been taken
from the store’s cash register and that a pair of boots was missing from the
inventory.
2 The video of that day from the store’s security camera showed a man
armed with a gun and wearing gray sweatpants, a black hooded sweatshirt, a
black ski mask, and gloves approach Pacheco in the store at around 1:48 p.m.
Pacheco handed the man money from the cash register, and the man then
pointed to the boot display on a wall. The man then followed Pacheco into the
back room, carrying the gun behind his back. External security-camera footage
from a nearby business showed that during the ten to fifteen minutes before the
9-1-1 call was made, someone drove and parked a tan Toyota Tacoma truck
behind the shoe store next to a dumpster. The driver later drove off through a
back alley. The police department released this footage of the truck and
received a tip that identified the owner of a similar truck—Everett.
Police officers never saw the truck at Everett’s home but traced the
temporary tags on a car in front of his home to a local car dealership. The
officers investigated and discovered that Everett had traded in a tan Toyota
Tacoma three days after Pacheco was killed. On March 11, 2014, Detective
Steve Griesbach went to Everett’s home to ask about his activities on February
25, 2014. In the recorded interview, Everett admitted that he had gone to the
shoe store to try on boots that day. Everett also told Griesbach that he had
traded in his Toyota Tacoma for a Ford Fusion and that he owned a nine-
millimeter gun, which he kept in the console of his car. Griesbach asked for
permission to search Everett’s car and bedroom, but he refused.
3 Griesbach decided to “freeze the scene” 2 and get a search warrant for
Everett’s car and bedroom. The ensuing search pursuant to the warrant resulted
in officers finding a loaded nine-millimeter gun, $150 in cash, and the boots that
were missing from the shoe store’s inventory in Everett’s car. In Everett’s
bedroom, officers found a black hooded sweatshirt and two backpacks. One
backpack contained a ski mask and gloves that matched those used in the
robbery. The second backpack contained food, water, knives, and two
envelopes labeled “Plan A” and “Plan B” containing maps for different states.
The shell casing found behind the shoe store the day of the robbery and murder
was later matched to the gun found in Everett’s car. The gun did not have a “hair
trigger,” which would cause the gun to fire with minimal pressure. In fact,
minimal pressure to pull a trigger—equating to a hair trigger—would be
“something in the ounces . . . or less than a pound.” The gun found in Everett’s
car had a trigger pull of 7.1 to 7.7 pounds.
A grand jury indicted Everett with capital murder, murder, and aggravated
robbery with a deadly weapon. See Tex. Penal Code Ann. §§ 19.02(b)(1),
29.03(a)(2) (West 2011), § 19.03(a)(2) (West Supp. 2015). Everett pleaded not
guilty to capital murder and murder, but pleaded guilty to aggravated robbery with
2 Griesbach explained that freezing the scene prevented anyone from removing anything from the areas to be searched.
4 a deadly weapon. 3 Everett testified at trial and admitted that he scouted the
store, looking for security cameras, and returned later with his cocked-and-
loaded gun and wearing a mask, hood, and gloves to rob Pacheco. Everett
wanted to leave the store by the back door and asked Pacheco to let him out and
get him the boots that he had tried on earlier. Everett testified that as he looked
out the back door to see if the alley was clear, Pacheco threw a shoe box at his
chest, causing him to flinch and accidentally fire the gun. Everett was familiar
with the shoe store because he routinely would play pool at a pool hall located
across the parking lot from the shoe store. Indeed, shortly after the robbery and
murder, Everett and a friend went to the pool hall, and his friend testified that
Everett seemed “fine”—he was not “upset,” “excited,” “twitchy,” “nervous,” or
“troubled”—even after they both noticed “all the cops” at the shoe store.
A jury found Everett guilty of capital murder and aggravated robbery with a
deadly weapon. Because the State did not seek the death penalty, the trial court
discharged the jury and, recognizing that aggravated robbery was a lesser-
included offense of capital murder, sentenced Everett to life imprisonment
without parole for capital murder. See Tex. Code Crim. Proc. Ann. arts. 37.071,
§ 1 (West Supp. 2015); Tex. Penal Code Ann. § 12.31(a) (West Supp. 2015).
But the trial court entered two judgments: one for capital murder, reflecting a
sentence of life confinement, and one for aggravated robbery with a deadly
3 There is no indication in the record that Everett’s guilty plea was the result of a plea-bargain agreement.
5 weapon, also reflecting a sentence of life confinement, to run concurrently.
See Tex. Code Crim. Proc. Ann. art. 42.08 (West Supp. 2015); Tex. Penal Code
Ann. § 3.03 (West Supp. 2015).
II. SUFFICIENCY OF THE EVIDENCE
In his first point, Everett argues that the evidence was insufficient to prove
that he had the requisite intent to kill Pacheco—that he acted intentionally.
See Tex. Penal Code Ann. § 19.03(a)(2). A person acts intentionally, or with
intent, with respect to the nature of his conduct or to a result of his conduct when
it is his conscious objective or desire to engage in the conduct or cause the
result. See id. § 6.03(a) (West 2011).
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170
(Tex. Crim. App. 2014). “Intent and knowledge are fact questions for the jury,
and are almost always proven through evidence of the circumstances
surrounding the crime.” Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim.
App. 1999) (Meyers, J., concurring). Circumstantial evidence of intent—the
person’s acts, words, and conduct—is reviewed with the same scrutiny as other
elements of the offense. See Laster v. State, 275 S.W.3d 512, 519–20, 524
(Tex. Crim. App. 2009). When we are asked to determine the sufficiency of the
6 evidence to show an appellant’s intent and when the record supports conflicting
inferences, we presume that the trier of fact resolved any such conflict in favor of
the prosecution and defer to that resolution. Turro v. State, 867 S.W.2d 43, 47
(Tex. Crim. App. 1993); Stobaugh v. State, 421 S.W.3d 787, 842 (Tex. App.—
Fort Worth 2014, pet. ref’d). But reversal based on insufficient evidence, even
evidence of intent, is restricted to those rare instances where the trier of fact did
not act rationally. See Laster, 275 S.W.3d at 517; Triplett v. State, 292 S.W.3d
205, 209–10 (Tex. App.—Amarillo 2009, pet. ref’d).
The evidence showed that Everett entered the shoe store with the intent to
rob Pacheco. Everett admitted he shot Pacheco with his gun but stated that the
gun accidently fired when Pacheco threw a shoe box at him. Everett shot
Pacheco in the forehead near his right eye from approximately two or more feet
away. Soon after the robbery and murder, Everett and a friend played pool near
the shoe store and watched the police activity from the window of the pool hall.
The friend noted that Everett acted “[j]ust like regular Jacob.” After he was
arrested, Everett told his brother’s girlfriend that he shot Pacheco because he
was “scared.” Although Everett testified that he did not intend to shoot Pacheco,
the jury was free to disbelieve Everett’s testimony and conclude that Everett
entered the store not only with the intent to rob Pacheco at gun point but also
with the intent to commit murder. Pacheco’s actions in deliberately casing the
shoe store for security cameras, later entering the store with a mask and a
loaded gun that did not have a hair trigger, shooting Pacheco in the forehead
7 from two or more feet away, and then returning to routinely play pool with a friend
across the parking lot from the shoe store could have led a reasonable and
rational finder of fact to determine that Everett intentionally committed the murder
of Pacheco. See, e.g., Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App.
1991) (finding evidence that defendant was undisputedly present at the scene of
the murder, gun required heavy trigger pressure, and victim was shot from a
distance, sufficient to show intentional killing and refute defendant’s claim gun
fired during struggle for gun); Thompson v. State, 691 S.W.2d 627, 630 (Tex.
Crim. App. 1984) (“A rational trier of fact could have inferred from appellant’s acts
of entering the office carrying a deadly weapon, . . . shooting her at close range,
and then fleeing the scene . . ., that appellant intended to cause the death of the
deceased.”), cert. denied, 474 U.S. 865 (1985); Walker v. State, 135 S.W.2d 992,
993–94 (Tex. Crim. App. 1939) (even though defendant claimed shooting was
accidental, concluding evidence that defendant planned robbery in great detail
and ensured gun to be used would work sufficient to show defendant intentionally
murdered); Carmon v. State, 456 S.W.3d 594, 604–05 (Tex. App.—Houston [1st
Dist.] 2015, pet. ref’d) (holding evidence sufficient to support jury’s finding that
defendant intentionally murdered two victims even though defendant claimed
shootings accidental because jury had power to resolve conflicts in testimony);
Slater v. State, No. 02-11-00368-CR, 2013 WL 2631194, at *5–6 (Tex. App.—
Fort Worth June 13, 2013, pet. ref’d) (mem. op., not designated for publication)
(concluding evidence sufficient to support finding that shooting was intentional
8 because law presumes an intent to kill when gun fired at close range and death
results, even though defendant claimed shooting was accidental); Allgood v.
State, No. 04-11-00358-CR, 2012 WL 3711695, at *5 (Tex. App.—San Antonio
Aug. 29, 2012, pet. ref’d) (mem. op., not designated for publication) (“As for
Allgood’s contention that he shot Gass by accident, that the gun just ‘went off’
when he flinched, a firearms expert testified the trigger on the firearm used to kill
Gass required a relatively heavy pull on the trigger to fire.”); cf. Fernandez v.
State, No. 10-01-121-CR, 2003 WL 131852, at *5 (Tex. App.—Waco Jan. 15,
2003, no pet.) (not designated for publication) (noting that although defendant’s
remorse immediately after the shooting and evidence of struggle between
defendant and victim supported defendant’s claim shooting was accidental and
not intentional, evidence was sufficient to support finding that shooting was
intentional or knowing). We overrule point one.
III. DOUBLE JEOPARDY
In his second point, Everett argues that the State was double-jeopardy
barred from prosecuting him for capital murder because he pleaded guilty to
aggravated robbery with a deadly weapon, a lesser-included offense. See U.S.
Const. amend. V; Tex. Code Crim. Proc. Ann. art. 1.10 (West 2005). A trial
court’s acceptance of a non-negotiated guilty plea to a lesser-included offense
does not bar prosecution for the greater offense. Kham v. State, 689 S.W.2d
324, 326 (Tex. App.—Fort Worth 1985, pet. ref’d); see also Ohio v. Johnson,
467 U.S. 493, 501–02, 104 S. Ct. 2536, 2542 (1984). The State has the right of
9 election and may submit the more serious offense to the jury; thus, a defendant
may not force the State’s election by pleading guilty to a lesser-included offense.
Kham, 689 S.W.2d at 327. Accordingly, the prosecution for capital murder was
not double-jeopardy barred by Everett’s non-negotiated guilty plea to a lesser-
included offense. We overrule point two.
However, the trial court entered a judgment for both capital murder and its
lesser-included offense—aggravated robbery with a deadly weapon—and
ordered the two life sentences to run concurrently. Cf. Bigon v. State,
252 S.W.3d 360, 369 (Tex. Crim. App. 2008) (holding double-jeopardy violation
may be addressed for the first time on appeal when the error is clearly apparent
from the face of the record). In orally pronouncing sentence, the trial judge
expressly stated that she would only sentence Everett on the “greater offense of
capital murder” because “aggravated robbery [was] the lesser[-]included
offense.” See Littrell v. State, 271 S.W.3d 273, 276–79 & n.33 (Tex. Crim. App.
2008); Langs v. State, 183 S.W.3d 680, 685–86 (Tex. Crim. App. 2006). The trial
court’s entry of a judgment regarding aggravated robbery conflicted with the trial
court’s refusal to orally pronounce sentence based on the capital-murder
conviction. See Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App.
2003) (holding oral pronouncement of sentence controls over conflicting
judgment); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992)
(recognizing court’s authority to reform judgment “to make the record speak the
truth when the matter has been called to its attention by any source”). This
10 constitutional error cannot be considered harmless because it contributed to
Everett’s punishment. See Tex. R. App. P. 44.2(a); see also Price v. Georgia,
398 U.S. 323, 331, 90 S. Ct. 1757, 1762 (1970) (concluding double-jeopardy
violation could not be found harmless).
The appropriate remedy is to set aside the conviction, sentence, and
judgment for the lesser-included offense and retain the conviction, sentence, and
judgment of the greater offense. See Littrell, 271 S.W.3d at 279. We therefore
retain the trial court’s judgment for capital murder—entitled “Case No. 1363213D
Count ONE”—and set aside the trial court’s judgment for aggravated robbery—
entitled “Case No. 1363213D Count THREE.” 4 The judgment for capital murder
is modified to delete the statement that the sentence shall run concurrently with
count three. The judgment is also modified to clearly show that his punishment is
imprisonment for life without parole to conform with the trial court’s oral
pronouncement. See Baker v. State, No. 12-14-00185-CR, 2015 WL 3958107,
at *7 (Tex. App.—Tyler Oct. 14, 2015, pet. ref’d) (mem. op., not designated for
publication); cf. Turner v. State, 443 S.W.3d 128, 129 (Tex. Crim. App. 2014)
(modifying judgment to reform sentence from life without parole to life with the
possibility of parole).
4 Even though Everett received a life sentence for aggravated robbery as well, capital murder is the greater offense because it disqualifies Everett from parole eligibility. See Tex. Penal Code Ann. § 12.31(a)(2); Ex parte Cavazos, 203 S.W.3d 333, 338–39 (Tex. Crim. App. 2006).
11 IV. ADMISSION OF EVIDENCE
In his third, fourth, and fifth points, Everett argues that the trial court
abused its discretion by admitting into evidence, over his rule 403 trial objections,
Griesbach’s recorded interview with Everett, a postmortem photograph of
Pacheco’s face, and the money found in Everett’s car. Tex. R. Evid. 403. We
review a trial court’s decision to admit evidence, as well as its decision regarding
the relative weight of the probative value of the evidence, under an abuse-of-
discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App.
2010), cert. denied, 131 S. Ct. 2966 (2011). A trial court abuses its discretion if
its determination lies outside the zone of reasonable disagreement. Id.
However, “[t]he rules of evidence favor the admission of relevant evidence and
carry a presumption that relevant evidence is more probative than prejudicial.”
Kirk v. State, 421 S.W.3d 772, 782 (Tex. App.—Fort Worth 2014, pet. ref’d).
In the recorded interview, Everett admitted that he went to the shoe store
on the day of the robbery and murder to look at black boots, that he owned a
Toyota Tacoma truck that day, that he returned to the area later that same day to
play pool with a friend, and that he owned a nine-millimeter gun that he kept in
his car. Griesbach testified that Everett was calm during the interview, and the
audio of the interview confirmed this testimony. Everett objected to the
admission of the recording because it was unfairly prejudicial, which the trial
court overruled. The recorded interview tended to rebut Everett’s claim that the
shooting was accidental, was probative of several elements of the charged
12 offenses that would be submitted to the jury, and was not unfairly prejudicial;
thus, the trial court did not abuse its discretion in overruling Everett’s rule 403
objection. See, e.g., Gould v. State, No. 02-12-00202-CR, 2014 WL 4105290, at
*3 (Tex. App.—Fort Worth Aug. 21, 2014, no pet.) (mem. op., not designated for
publication); Rodriguez v. State, No. 14-07-00142-CR, 2008 WL 4007493, at *9
(Tex. App.—Houston [14th Dist.] Sept. 2, 2008, pet. ref’d) (mem. op., not
designated for publication). Further, Everett fails to argue how his substantial
rights were affected by the admission of the recording, even if erroneous, other
than to point out that he was sentenced to life imprisonment. See Tex. R. App.
P. 44.2(b). A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury’s verdict. King v. State,
953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Everett does not argue that the
recording had a substantial or injurious effect on the jury’s guilty verdict. We
overrule point three.
Everett also objected at trial to the admission of a postmortem photograph
of Pacheco’s face depicting the bullet wound to his forehead on the basis of rule
403, which was overruled. Again, Everett does not argue that the admission of
the photograph affected his substantial rights or had an undue influence on the
jury’s guilty verdict. This photograph was not unfairly prejudicial and tended to
rebut Everett’s claim that he accidentally and reflexively shot the gun.
See Ventroy v. State, 917 S.W.2d 419, 422–23 (Tex. App.—San Antonio 1996,
pet. ref’d); cf. Reese v. State, 33 S.W.3d 238, 242 (Tex. Crim. App. 2000)
13 (holding photograph of pregnant murder victim in casket admitted at punishment
unfairly prejudicial and inadmissible because it suggested jury’s sentencing
decision was made on improper, emotional basis and not on basis of other
relevant evidence). The trial court did not abuse its discretion, and we overrule
point four.
Everett finally contends that the admission of the money found in his car
was an abuse of discretion. Everett objected at trial that the probative value of
the money was outweighed by the danger of unfair prejudice, which the trial court
overruled. The money was found in the car near the gun used to shoot Pacheco
and the boots taken from the shoe store that day; thus, this evidence was
admissible as part of the context of the charged offenses. See Mann v. State,
718 S.W.2d 741, 743–44 (Tex. Crim. App. 1986), cert. denied, 481 U.S. 1007
(1987). The money was probative of issues submitted to the fact finder and was
not unfairly prejudicial; thus, the trial court did not abuse its discretion by
overruling Everett’s rule 403 objection. See Franks v. State, 138 S.W.2d 109,
113–14 (Tex. Crim. App. 1940). Further, Everett offers no cogent argument
regarding the requisite harm flowing from the admission of the money. We
overrule Everett’s fifth point.
V. CONCLUSION
We modify the trial court’s judgment to vacate the conviction and sentence
for aggravated robbery and to reflect only the conviction and sentence for capital
murder. We further modify the trial court’s capital-murder judgment to delete the
14 statement that the capital-murder sentence will run concurrently with the
aggravated-robbery sentence. As modified, we affirm the trial court’s remaining
judgment. See Tex. R. App. P. 43.2(b); Littrell, 271 S.W.3d at 279 & n.33.
/s/ Lee Gabriel
LEE GABRIEL JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: January 14, 2016