Jose Vasquez Gonzales v. State

• Court: Court of Appeals of Texas
• Decided: June 23, 2005
• Docket: 13-03-00674-CR
• Status: Published

Opinion

                             NUMBER 13-03-674-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

JOSE VASQUEZ GONZALES,                                     Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

                  On appeal from the 377th District Court

                           of Victoria County, Texas.

                     MEMORANDUM OPINION^[1]

                Before Justices Rodriguez, Castillo, and Garza

                  Memorandum Opinion by Justice Castillo

A jury convicted appellant, Jose Vasquez Gonzales, of murder.^[2]  The jury assessed punishment at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice.  By four issues, Gonzales appeals his conviction by  (1) challenging the factual sufficiency of the evidence, (2) asserting that the trial court erred in allowing the testimony of an expert over the objection of trial counsel, (3) claiming the trial court erroneously included language in the jury charge which was not supported by the evidence, and (4) alleging his trial counsel failed to object to improper jury argument rendering his representation ineffective.  We affirm.

I.  BACKGROUND

Four members of a teenage gang gathered at a motel room on the evening of June 17, 2001, and stayed there overnight.  On June 18, 2001, at around 6:00 a.m., someone knocked on the door.  The victim, seventeen-year-old Martin Gonzales,^[3] arose to open the door.  Gunfire erupted.  Martin=s friend, Jose Montoya, saw appellant Gonzales, a member of a prison gang, at the door.  Montoya identified Gonzales as the person who walked in and shot Martin.  A second unidentified shooter also shot into the room.  The second shooter never entered the room.  Montoya only saw a gun in a hand.  Pete Rendon, who was asleep on the floor of the motel room, was also injured.  Martin died as the result of a gunshot wound to his chest.  Montoya and a fourth occupant were not injured.  Gonzales and Martin were members of rival gangs.

II.  FACTUAL SUFFICIENCY

In his first issue, Gonzales argues that the evidence is factually insufficient  to support the conviction.  The State responds that the jury heard the evidence and made its decision based on factually sufficient evidence.

A.  Standard of Review

A factual‑sufficiency review begins with the presumption that the evidence supporting the jury's verdict is legally sufficient, that is, sufficient under Jackson v. Virginia, 443 U.S. 307, 319 (1979).  See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996) (en banc).  In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond‑a‑reasonable‑doubt  standard could not have been met.  Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004) (en banc).  A clearly wrong and unjust verdict occurs where the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias."  Prible v. State, No. AP‑74,487, 2005 Tex. Crim. App. LEXIS 110, at *16‑*17 (Tex. Crim. App. January 26, 2005) (designated for publication).  In conducting a factual sufficiency review, we review all the evidence.  Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997).  We must consider the most important evidence that the appellant claims undermines the jury's verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).  However, we approach a factual‑sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder.^[4]  Johnson v. State, 23 S.W.3d 1, 6‑7 (Tex. Crim. App. 2000) (en banc).  Every fact need not point directly and independently to the accused's guilt.  Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981).  A conclusion of guilt can rest on the combined and cumulative force of all the incriminating circumstances.  Id.

Our neutral review of all the evidence, both for and against the challenged elements, looks to determine whether proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or whether proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  See Zuniga v. State, 144 S.W.3d 477, 484‑85 (Tex. Crim. App. 2004); see also Zuliani v. State, 97 S.W.3d 589, 593‑94 (Tex. Crim. App. 2003).  We remain mindful of the jury's role to resolve conflicts in testimony.  See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998) (en banc) (holding that questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact); see also Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974).  We  must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution.  Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996) (en banc).

B.  Hypothetically Correct Jury Charge

We measure the factual sufficiency of the evidence against a hypothetically correct jury charge.^[5]  Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd).  A hypothetically correct charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict its theories of liability, and adequately describes the particular offense proof.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Cano v. State, 3 S.W.3d 99, 105 (Tex. App.BCorpus Christi 1999, pet. ref'd).  A hypothetically correct jury charge would not simply quote from the controlling statute.  Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001).  Its scope is limited by the statutory elements of the offense as modified by the charging instrument.  See Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (Keller, P.J., concurring) (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000)).

Murder is a "result of conduct" offense.  Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993) (en banc).  We must decide whether a rational trier of fact could have found beyond a reasonable doubt that Gonzales intentionally or knowingly caused Martin=s death.  Tex. Pen. Code Ann. ' 19.02(b)(1) (Vernon 2003).  A person acts intentionally with respect to the result of his conduct when it is his conscious objective or desire to cause the result.  Tex. Pen. Code Ann. ' 6.03(a) (Vernon 2003).  A person acts knowingly with respect to the result of his conduct when he is aware his conduct is reasonably certain to cause the result.  Id. at ' 6.03(b). 

C.  Discussion

Gonzales argues that the evidence is circumstantial and that the contrary evidence,  particularly evidence of identity, motive, and tracing the ammunition to him, is strong enough that the beyond‑a‑reasonable‑doubt standard could not have been met. The State counters that the evidence is abundantly sufficient to support the verdict on various theories presented to the jury.

1.  Identity

Where identity is an issue in the case, the identity of the perpetrator may be proved by direct or circumstantial evidence.  Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986) (en banc) ("Evidence as to the identity of the perpetrator of an offense can be proved by direct or circumstantial evidence."). In our sufficiency review, we are governed by the fact that the jury is the exclusive judge of the facts proved, the credibility of the witnesses, and the weight to be given to the testimony.  Id.; Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979).  The jury may believe or disbelieve all or any part of a witness's testimony, even though the witness's testimony has been contradicted.  Id. (citing Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986)).  Reconciliation of conflicts in the evidence is within the exclusive providence of the jury.  Id.  (citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)).  Evidence is not rendered insufficient when conflicting evidence is introduced.  Matchett, 941 S.W.2d at 936.  The reviewing court must assume that the fact finder resolved the conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution.  Id.       

Montoya testified that the shooter forced the motel room door open with his foot when Martin attempted to close it.  Montoya stated he saw the face of the shooter.  The sunrise afforded some light both outside and inside the motel room.  He had never before seen the assailant.  After the assault, Montoya immediately thought that the rival gang was involved because of recent fighting between them.  When shown a photo lineup the day of the shooting, Montoya did not identify the shooter, because he was nervous.  He testified that Gonzales "was the gang leader . . . He would probably kill me."  Upon initial questioning, he told the police he saw nothing.  On the same day, Montoya gave a videotaped statement^[6] to police and described the shooter as short with a dark complexion and long hair.  He only saw the hand and gun of a second shooter.  Hidden behind the door, the second assailant did not enter the room.

 Eight days later, Montoya identified Gonzales from a police photo lineup.  On cross-examination, the following ensued:

Q.  Then a police officer shows you a lineup and one of them is a [rival gang member] and he said, APick out the one that did it?@

A.  Yes.

Q.  And so, you pick out the one that=s the [rival gang member], is that right?

Montoya further testified that he did not know any of the men in the photo identification spread or whether, other than Gonzales, they were rival gang members.  He selected Gonzales solely because he was the person he saw shoot Martin.  The photo spread, admitted in evidence, shows Gonzales with short hair.  Montoya identified Gonzales at trial as the shooter and testified Gonzales has a light complexion.          

Antonio Gudino testified that he was in the motel room and that the lights in the room were off.  He saw Martin open the door in response to a knock and "they started shooting."  About eight or nine shots were fired.  Martin was killed and Pete Rendon, also in the room, was injured.  When the shooting started, Gudino was half asleep and did not see the shooters. 

Gonzales's friend, Onesimo Salazar, testified that Gonzales was in his bar on June 17, 2001 from 8:00 p.m. to 2:00 a.m. the following morning.  Gonzales's girlfriend, Shirley Robles, testified Gonzales arrived at his home between 2:30 a.m. and 3:00 a.m. on June 18, 2001, and remained there until 8:00 a.m. or 9:00 a.m.  She further testified she did not know whether or not Gonzales was in a gang.  Robles stated Gonzales had always had a light complexion and short hair. 

We are not required to conclude that the verdict was factually insupportable because the evidence of guilt was not free of contradiction and the credibility of witnesses may have been subject to question.  See Zuliani, 97 S.W.3d at 593‑94.  Those circumstances merely create issues for the jury to resolve.  Id.  We will not reverse unless (1) the evidence of Gonzales's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.  See Zuniga, 144 S.W.3d at 484‑85.  Viewing the relevant evidence in a neutral light, favoring neither the prosecution nor the defense, and with appropriate deference to the jury's credibility determinations, we conclude the evidence supporting Gonzales as the shooter is not too weak to sustain the jury's finding of guilt beyond a reasonable doubt.  Zuniga, 144 S.W.3d at 484‑85; Earls, 707 S.W.2d at 85.  Nor is the weight of the evidence contrary to the verdict strong enough that the State could not have met its burden of proof at trial.  Zuniga, 144 S.W.3d at 484‑85.  Thus, the evidence is factually sufficient to prove identity. 

2.  Intent

Motive is a significant circumstance indicating guilt.  Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).  Intent may also be inferred from circumstantial evidence such as acts, words, and the conduct of the appellant.  Id. 

If a deadly weapon is used in a deadly manner, the inference is almost conclusive that the defendant intended to kill.  Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App.1993); see Bell v. State, 501 S.W.2d 137, 138 (Tex. Crim. App. 1973); Guerrero v. State, 655 S.W.2d 291, 292 (Tex. App.BCorpus Christi 1983, no writ).  In fact, where a deadly weapon is fired at close range and death results, the law presumes an intent to kill.  Womble v. State, 618 S.W.2d 59, 64 (Tex. Crim. App. 1981).

We have already concluded that eyewitness testimony sufficiently  established Gonzales was the shooter.  The deputy medical examiner, Dr. Elizabeth Peacock, testified that the cause of Martin=s death was a "through and through" gunshot wound to the chest.  The gun was at least three feet from Martin when fired but "it could be closer" under certain circumstances.  Photographs admitted in evidence depict Martin's body on the floor at the entrance to the room next to the open door. 

Gonzales challenges two prosecution theories to support motive involving evidence that (1) Gonzales was going to fix a problem involving his girlfriend=s daughter, Jasmine, and Martin; and (2) a fight between the two rival gangs in which the teenage gang bested Gonzales=s gang.  Gonzales argues that other evidence tends to disprove motive.  Gonzales directs our attention to the testimony of Ricardo Moran DeJesus, who was living with Gonzales's sister in June 2001.  DeJesus testified that he overheard a conversation between Gonzales and his mother about a teenager, Jasmine.  Jasmine had appeared at the house crying and told Gonzales that someone made her cry.^[7]  DeJesus overheard Gonzales tell his mother that he was going to a motel to solve a problem.  Gonzales was mad when he left his mother=s house.  About a week later, DeJesus overheard Gonzales tell his mother "an accident had happened" at a motel and two people died.  Gonzales also told his mother he was going out of town.^[8] 

Gonzales argues that contrary evidence negates motive.  He points to testimony from Robles, Jasmine's mother.  Robles testified that Jasmine had never visited Gonzales's mother=s house, stating, "To this day, my daughter doesn=t even talk to her."  

Gonzales also directs our attention to the testimony of Johnny Ray Fuentes, a member of Gonzales's gang, who has since renounced his affiliation.  Fuentes testified that Gonzales was the highest ranking member of the prison gang.  Fuentes stated that he knew what happened at the motel.  He explained that the teenage gang had recently won three out of four fights with Gonzales's gang.  Fuentes decided to leave the gang around December 2002 because Gonzales asked him to take the blame for the murder, and he refused.  Since then, there had been three attempts on his life.  During one of the attempts, he recognized a member of Gonzales's gang.  When the prosecutor asked, "Now, who did the killing at the [motel]?," Fuentes answered, "From what I know, it was two other people."  When asked, "It wasn't [Gonzales] was it?," he answered, "From what I know."  He was asked again, "From what you know, it wasn't him?"  Fuentes answered, "No, sir."  When asked, "From what you know, he wanted you to take the rap for something he didn't do?," he testified, "Yes."

Gonzales argues that the evidence is too weak to support motive.  He essentially argues that Fuentes' testimony was self serving and not credible because Fuentes had a motive to attack Gonzales's gang. 

However, the jury also heard that Jasmine was at the scene of the shooting between 6:00 a.m. and 7:00 a.m.  Carmen Villarreal was registered at the motel.  She saw a girl named Jasmine in a car full of girls.  Jasmine asked her what happened and Villarreal told her Martin was killed.  One of the girls in the car laughed and they left.  The jury may infer the requisite intent from any facts which tend to prove its existence, including the acts, words, and conduct of the accused, the method of committing the crime, and the nature of the wounds inflicted on the victims.  Hart v. State, 89 S.W.3d 61, 63 (Tex. Crim. App. 2002).  By its verdict, the jury rejected the evidence of an alibi and evidence Gonzales argues negated motive.  The medical examiner=s testimony placed Martin at least three feet away from Gonzales when he was shot.  The jury could have reasonably inferred the intent to kill (1) from the proximity of the victim from the shooter, (2) from testimony that Gonzales said he was going to fix a problem at a motel involving Martin and Jasmine,  or (3) from testimony that he wanted Fuentes to take the blame for the murder.  With proper deference to the jury's role, we conclude that the evidence supporting motive is not too weak to sustain the jury's finding of guilt beyond a reasonable doubt.   Zuniga, 144 S.W.3d at 484‑85; Earls, 707 S.W.2d at 85.  Nor is the weight of the evidence contrary to the verdict strong enough that the State could not have met its burden of proof at trial.  Zuniga, 144 S.W.3d at 484‑85.  Thus, we conclude the evidence was factually sufficient to prove motive.

We overrule the first issue presented.

III.  ADMISSION OF EXPERT TESTIMONY

In his second issue, Gonzales requests this Court to review the trial court's ruling on the admissibility of expert testimony regarding bullet lead analysis under the scientific evidence test set out in Daubert and Kelly. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94 (1993); Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).  Gonzales argues that the trial court abused its discretion by allowing the testimony of Charles Peters, an FBI expert on comparative bullet lead analysis,^[9] because the evidence was not reliable.  The State counters that, at the Daubert hearing, Peters testified as to each of the factors enumerated in Kelly and the science is reliable. 

A.  Standard of Review

The question squarely before the trial court was whether the expert testimony was sufficiently reliable and whether its probative value outweighed the danger of its prejudicial effect, if any, to warrant admission.  We review a trial court=s admission of expert testimony under an abuse of discretion standard.  Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995); see Holloway v. State, 613 S.W.2d 497, 501 (Tex. Crim. App. 1981) (en banc).  Absent a clear abuse of that discretion, the trial court's decision to admit or exclude testimony will not be disturbed.  See Penry, 903 S.W.2d at 762.  Under this standard, a trial court's decision to admit certain scientific evidence must be within the zone of reasonable disagreement in light of evidence offered at a Daubert hearing and the requirements of the Texas Rules of Evidence.  See Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991) (op. on reh=g); see also Tex. R. Evid. 702.                                  

B.  Burden of Proof

In determining the admissibility of novel scientific evidence, the threshold question asked by both rule 702 and Kelly is, "whether the testimony will help the trier of fact understand the evidence or determine a fact in issue."  State v. Medrano, 127 S.W.3d 781, 784‑85 (Tex. Crim. App. 2004) (en banc); see Tex. R. Evid. 702 (stating that evidence should be admitted, "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.").  In Kelly, the Court of Criminal Appeals reasoned that "the trial court's first task is to determine whether the testimony is sufficiently reliable and relevant to help the jury in reaching accurate results," because "'unreliable . . . scientific evidence simply will not assist the [jury] to understand the evidence or accurately determine a fact in issue.'"  Medrano, 127 S.W.3d at 784‑85 (quoting Kelly, 824 S.W.2d at 572).  Kelly states that "before novel scientific evidence may be admitted under rule 702, the proponent must persuade the trial court, by clear and convincing evidence, that the evidence is reliable and therefore relevant."  Id.  The reliability of novel scientific evidence is the cornerstone of the opinion in Kelly.  Id. 

Proving reliability requires that the proponent establish that (1) the underlying scientific technique is valid, (2) the technique applying the theory is valid, and (3) the technique has been properly applied on the occasion in question.  See id.  Additionally, a trial court may consider seven factors which could affect reliability.^[10]  Id.  This standard was expanded by the Court through Hartman v. State, 946 S.W.2d 60, 63 (Tex. Crim. App. 1997) (en banc), in which the Court held that the standard established in Kelly applies to all scientific evidence offered under rule 702.  Id.

At the Daubert/Kelly hearing, Peters was the sole witness to testify.  He  testified that, in his opinion, after testing five bullet fragments recovered from the scene, the bullet fragments were likely produced at the same time as bullets found in a box of ammunition seized from Gonzales's residence.  The record shows that Peters addressed, distinguished, and countered each contrary study presented during rigorous cross-examination at the hearing.  At the end of the hearing, the trial court overruled the motion in limine to exclude his testimony, relying on State v. Noel, 157 N.J. 141, 148 & 152 (N.J. 1999) ("questions regarding whether bullets come from the same box affect the weight of the evidence rather than its admissibility" and "the testimony constituted a link in the chain of evidence connecting defendant to the murder").    

Rule 702 governs the admissibility of expert testimony and scientific evidence.  See Medrano, 127 S.W.3d at 786.  Reliability was and remains a central theme of rule 702 because the rule requires that any expert be able to assist the trier of fact to understand the evidence or to determine a fact in issue and because unreliable scientific evidence simply will not assist the jury to understand the evidence or accurately determine a fact in issue.  See id. 

Gonzales directs his complaint to no specific Kelly factor; rather, his complaint is generally that the "science is unreliable."^[11]  The challenge to Peter's testimony at the hearing was that his analysis "has some scientific validity but studies have found there is really no reason to believe that the properties could be compared with any certainty."  Peters testified that he compared seven common elements in the samples tested.  The prosecutor asked, "So, this is more accurate and reliable than most of the bullet lead tests you conduct?"  Peters responded, "It is certainly the best that we could have." 

We conclude that the trial court fully executed its gatekeeping function and did not abuse its discretion by admitting the expert testimony.  See Hernandez v. State,  116 S.W.3d 26, 31 n.11 (Tex. Crim. App. 2003) (en banc); Montgomery, 810 S.W.2d at 878.  The evidence made it more probable than not that the expended bullets originated from the ammunition box found in Gonzales's residence.  See Tex. R. Evid. 401 & 403.  Gonzales was free to challenge the expert's conclusions and point out the weaknesses of the analysis to the jury during cross‑examination.  Weight and credibility are the province of the jury.  "Vigorous cross‑examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."  Daubert, 509 U.S. at 596.^[12]         

We overrule the second issue presented.

IV. JURY CHARGE ERROR

In his third issue, Gonzales argues that, over objection at trial, the charge authorized the jury to convict upon a theory not supported by the evidence.  The State responds that the alternate theory was grounded on evidence adduced at trial. 

The function of the jury charge is to instruct the jury on the law applicable to the case.  Escobar v. State, 28 S.W.3d 767, 778 (Tex. Crim. App. 2000); Dinkins v. State, 894 S.W.2d 330, 338 (Tex. Crim. App. 1995).  When we review whether there has been error in a jury charge, we apply an Almanza analysis to determine (1) whether error actually exists in the charge, and (2) whether any resulting harm requires reversal.  Escobar, 28 S.W.3d at 778; Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

B.  Discussion

Gonzales argues that the charge impermissibly allowed the jury to convict on the theory that he ordered other unknown persons to shoot Martin without evidence to support the instruction.^[13]  The charge on culpability authorized the jury to convict Gonzales if it found beyond a reasonable doubt that Gonzales (1) murdered Martin by shooting him, (2) aided or attempted to aid an unknown person to murder Martin by also shooting at Martin, or (3) directed an unknown person to murder Martin by giving the order to commit the offense.  The charge also instructed the jury on the law of parties. 

Thus, conviction was authorized under the evidence in this case if a rational jury could find that Gonzales intentionally caused Martin=s death, either as a principal or as a party.  See Tex. Pen. Code Ann. ' 19.02(b)(1) (Vernon 2003); see also Hanson v. State, 55 S.W.3d 681, 690 (Tex. App.BAustin 2001, no pet.).  A person commits murder if he intentionally or knowingly causes the death of an individual.  Tex. Pen. Code Ann. ' 19.02(b)(1) (Vernon 2003).  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.  Id. ' 7.01 (Vernon 2003). A person is criminally responsible for an offense committed by another if, 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) (Vernon 2003).

Gonzales's sole complaint focuses on the perceived fatal variance between the jury charge and the evidence adduced at trial.^[14]  Thus, on the charge presented, the  jury could convict him if it found that he was "present at the commission of the offense and encourage[d] its commission by words or other agreement."  King v. State, 29 S.W.3d 556, 564 (Tex. Crim. App. 2000) (en banc); see Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996) (en banc).

Montoya testified that a second unidentified assailant fired shots into the motel room.  Fuentes testified Gonzales asked him to take the blame for the shooting.  DeJesus testified that Gonzales said he was going to fix Jasmine's problem at a motel. Jasmine appeared at the scene shortly after the shooting.  Detective Melissa Wasicek testified extensively regarding Gonzales's confirmed affiliation with a prison gang.^[15]  He held the rank of captain.  She testified about fights between the teenage gang and the prison gang before the motel shooting.  The teenage gang won "some of the actual fist fights" and "disrupted" the prison gang members by "going by a bar or a place where they gather."  The teenage gang "shouted insults" at the prison gang and there was a lot of "'disrespect.'"  Fuentes testified as to his membership in Gonzales' prison gang.  He testified that, because Gonzales was the captain, the highest local rank, he was the decision maker in the city.  Gonzales made the decision as to who was killed.  At the time of the shooting, he retained the rank as the head of the local prison gang.  The prison gang would put the teenage gang in its place if it "disrespected" the prison gang, by disrespecting a member of Gonzales's family, fighting, yelling, and passing by "a bar where the highest ranking member is."  

The application paragraph charged Gonzales as a principal or a party.  The jury was authorized to convict on either theory.  We conclude that the evidence adduced at trial supported the party theory and instruction.  We further conclude that the trial court made Gonzales's culpability depend on a finding that he committed the offense acting either alone or as a party.  Because the jury was authorized to convict him if it found he was acting alone, any error was harmless.  See Stein v. State, 514 S.W.2d 927, 934 (Tex. Crim. App.1974); Hannon v. State, 475 S.W.2d 800, 801 (Tex. Crim. App. 1972); see also Tex. R. App. P. 44.2.

We overrule the third issue presented.

V.  EFFECTIVE ASSISTANCE OF COUNSEL

In his fourth issue, Gonzales argues that his trial counsel's failure to object to improper jury argument rendered his representation ineffective.^[16]  The State responds that the failure to object was, arguably, based on strategy.

A claim of ineffective assistance of counsel must be firmly supported in the record.  McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996) (per curiam) (en banc).  When determining the validity of a defendant's claim of ineffective assistance of counsel, we must be highly deferential to trial counsel and avoid the distorting effects of hindsight.  Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (en banc).  We presume counsel's performance was the result of sound or reasonable trial strategy.  Strickland v. Washington, 466 U.S. 668, 688 (1984); also Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991) (en banc).  We will not base a finding of ineffectiveness on speculation.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (per curiam); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.BHouston [1st Dist.] 1996, no pet.).  

Gonzales has not rebutted the presumption he was adequately represented.  See Strickland, 466 U.S. at 688.  Regardless of counsel's failure to object to a perceived improper jury argument, Gonzales has not proven to a reasonable probability that, but for counsel's failure to object, the result of the proceeding would have been different.  See Strickland, 466 U.S. at 698; see also Ex parte White, 2004 Tex. Crim. App. LEXIS 1612, at *22‑23 (Tex. Crim. App. Sept. 29, 2004).  When the record is silent regarding the motivation of counsel's tactical decisions, the defendant cannot overcome the strong presumption that counsel acted reasonably.  Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).  In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel.  See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999); see also Ortiz v. State, 93 S.W.3d 79, 88‑89 (Tex. Crim. App. 2002) (en banc) ("If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal."). 

Thus, on this record, we conclude that Gonzales has failed to establish that his trial counsel was ineffective.  Without a record of trial counsel's overall performance and strategic decisions, we cannot determine if counsel's performance was objectively deficient or if it created an unnecessarily disadvantageous result.  See Jackson, 877 S.W.2d at 771. 

We overrule the fourth issue presented.

 VI.  CONCLUSION

We affirm the trial court judgment.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered

and filed this 23rd day of June, 2005.

---

^[1] See Tex. R. App. P. 47.2 & 47.4.

^[2] A person commits murder if he intentionally or knowingly causes the death of an individual. Tex. Pen. Code Ann. '19.02 (b)(1) (Vernon 2003).  The indictment alleged that, on or about June 18, 2001, Vasquez intentionally and knowingly caused the death of Martin Gonzales by shooting him with a firearm.  The indictment contained two enhancement counts.

^[3] We refer to Martin Vasquez as "Martin" for the sole reason that appellant has the same last name. 

^[4] We always remain aware of the fact finder's role and unique position, a position we are un-

able to occupy.  Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (en banc).  Exercise of our authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice.  Id. at 9.  Otherwise, we accord due deference to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence.  Id.  Absent exceptional circumstances, issues of witness credibility are for the jury, and we may not substitute our view of the credibility of a witness for the constitutionally guaranteed jury determination.  Id.

^[5] The court of criminal appeals has not specifically applied the hypothetically correct jury charge analytical construct to factual‑sufficiency reviews in jury trials.  See Zubia v. State, 998 S.W.2d 226, 227 n.2 (Tex. Crim. App. 1999) (per curiam) (en banc) (dismissing as improvidently granted the question of whether Malik should extend to factual grounds not submitted to the jury). 

^[6] The videotape is not in the appellate record.

^[7]  Montoya testified earlier in the trial that Jasmine was upset by Martin's recent end to their relationship.  Martin left Jasmine to reunite with the mother of his child.

^[8]  At the time of trial, DeJesus was no longer with Gonzales's sister.  When asked if he was worried about testifying, he stated, AI don't want anything to happen to me.@

^[9] Peters described the scientific basis for bullet lead analysis:

[W]e have a bullet and, generally, firearms cannot match that bullet to the rifling of a barrel because maybe too much damage has happened to the bullet or maybe a gun=s not recovered or various other reasons.  The question is, can we associate this bullet with the suspect through other terms?  And that=s what we call this comparative lead analysis and that's what we are here about today.  The basis is . . . that things made from the same solution will have the same composition.  Different things made at different times will have different compositions.  

Peters described how bullets are made.  In his comparative lead analysis, he looks for seven elements within the lead in the bullet. 

^[10]  These factors are (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the experts testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question.  State v. Medrano, 127 S.W.3d 781, 785 (Tex. Crim. App. 2004).

^[11] We broadly construe the complaint as based on the first Kelly factor.  See Tex. R. App. P.

38.1(e).  However, the State argues that the issue appears to be based on the "general acceptance" theory abandoned in Kelly. 

^[12]  Even if the trial court abused its discretion, the admission of the evidence was harmless because the testimony was a "link in the chain" of overwhelming evidence connecting Gonzales to the murder.  See Tex. R. App. P. 44.2; Noel, 157 N.J. at 146.  Expert testimony of bullet lead analysis has been admitted in a jury trial in Texas.  See Jacques v. State, No. 08‑02‑00491‑CR, 2004 Tex. App. LEXIS 7264, at *8-*9 (Tex. App.BEl Paso 2004, no pet.) (not designated for publication).   

^[13] The charge instructed, in relevant part:

Now if you find from the evidence beyond a reasonable doubt that on or about the 18th day of June, 2001, in Victoria County, Texas, the defendant JOSE VASQUEZ GONZALES did intentionally or knowingly cause the death of an individual, namely:  MARTIN GONZALES, by shooting the said MARTIN GONZALES with a firearm; or

if you find from the evidence beyond a reasonable doubt that on or about the 18th day of June, 2001, . . . a person unknown did intentionally or knowingly cause the death of an individual, namely: MARTIN GONZALES, by shooting the said MARTIN GONZALES with a firearm, and the defendant JOSE VASQUEZ GONZALES did then and there, with intent to promote or assist the commission of said offense: aid or attempt to aid said person unknown by also shooting at the said MARTIN GONZALES with a firearm; or direct said person unknown to commit said offense by giving the order that the offense occur,

then you will find the defendant guilty of the offense of MURDER as alleged in the indictment. 

^[14] The indictment charged Gonzales as a primary actor with regard to the murder and did not charge him as a party to the offense.  The State did not need to indict Gonzales as a party to murder in order for the jury to convict him as a party to that offense.  Jackson v. State, 898 S.W.2d 896, 898 (Tex. Crim. App. 1995), overruled on other grounds, Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997).  The law of parties may be applied to a case even though no such allegation is contained in the indictment. Id.; Pesina v. State, 949 S.W.2d 374, 377 (Tex. App.BSan Antonio 1997, no pet.).

^[15] Wasicek testified that Gonzales was a documented, self-proclaimed gang member in the prison system.  Evidence seized from his residence included photographs showing Gonzales displaying the gang sign and documents reflecting the "gang's obligations and responsibilities." 

^[16] Gonzales asserts that his trial counsel did not object to following argument during the culp- ability phase of the trial:

You think about it.  Inside that room, 332, is just a gang of kidsB16, 17-years old, too young to legally drink, couldn't vote, barely old enough to drive, all high school students.  When you think about that, who says it couldn=t have been your kid?  I know you have kids, probably not members of a gang.  Who says your kids wouldn't have known them or kids like them and be around them at the same time.  You see, it doesn't matter where or how, but have your kids ever disrespected an adult?  And the [prison gang] has shown what happens when they disrespect an adult.  It could have been your kid that disrespected the [prison gang].  And it could have been your kid on the emergency room bed.

The prosecutor, however, continued: "Why?  Because here in our town, in Victoria, is a . . . prison gang.  Their purpose, to terrorize.  And, to be able to terrorize, they have to have people fear them and they must do that to get others to fear them and that's how they get respect, by being feared."