Jovani Solis Huarto v. State

• Court: Court of Appeals of Texas
• Decided: June 21, 2007
• Docket: 01-06-00174-CR
• Status: Published

Opinion

Opinion issued June 21, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00174-CR

____________

JOVANI SOLIS HUARTO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 1054944

MEMORANDUM OPINION

A jury found appellant, Jovani Solis Huarto, guilty of the offense of murder ⁽¹⁾ and assessed his punishment at confinement for sixty-five years. In his sole point of error, appellant contends that the evidence is factually insufficient to support his conviction.

We affirm.

Factual Background

Crystal Vega testified that on May 19, 2005, she had a barbecue at the apartment of Tito Huarto, appellant's cousin. She knows appellant by the name of "Francisco," but he also goes by the name of "Pancho." Initially, a man nicknamed "La Machina" was present at the apartment, but he left with a female before the barbecue started. While Vega was at her apartment with appellant, prior to going down to the barbecue at Tito Huarto's apartment, appellant told her that he was looking for La Machina "to kill him because he had slept with his wife," Latrisha Rivera. ⁽²⁾ Rivera had previously told Vega that she was having an affair with La Machina, and Tito Huarto had told appellant about the affair. Vega explained that the complainant, Felipe Lopez, nicknamed "La Scama," was La Machina's uncle. Prior to the barbecue, appellant allowed the complainant to borrow his truck, a green Dodge, to go purchase beer. The truck was parked in a drive-through between two apartment buildings both before and after the complainant returned from the store.

At the barbecue, Vega saw appellant with a "black--like a black steel gun" that she initially saw when he was in her apartment talking about La Machina. Appellant showed the gun to people at the barbecue. He then pointed the gun at the complainant, but "he pointed it" and pulled the trigger "like he was playing." Vega explained that either the gun was not loaded or it "locked." She thought appellant was "playing" because he was laughing at the time. Appellant said that the gun was not loaded. About thirty minutes later, after Vega had been at the barbecue for about one and one-half hours, she saw appellant shoot the complainant after having a verbal argument. Appellant told the complainant that his nephew, La Machina, "had slept with his girl." He wanted to know where La Machina was, and he shot the complainant three times. Initially, the complainant "didn't go down," and appellant shot him again. Vega then saw appellant get into his truck with his brother and leave "[l]ike 15 seconds" after the shooting. The tires screeched as appellant drove away.

After police officers arrived at the scene, Vega told them that she saw who shot the complainant. She asked the officers "to fake it like they were arresting" her because she "didn't want nobody to think that [she] was snitching on them." When Vega spoke with the officers, she referred to appellant as "Francisco Solis" and later learned appellant's actual name. Vega conceded that she has a prior conviction for unauthorized use of a motor vehicle and another conviction for theft.

Latrisha Rivera, appellant's girlfriend, testified that on May 19, 2005, she learned that appellant "had killed somebody." Rivera, with her children, was in her apartment across the street from where the shooting occurred when she heard "screeching tires." She thought it was appellant's truck "[b]ecause he always did it." After Rivera heard the screeching tires, she called appellant to ask where he was. Appellant told Rivera to pack some clothes and that they were going to spend the night somewhere else. Rivera, along with her children, went to the apartment manager's apartment to meet appellant. Rivera and her children got into appellant's green Dodge truck and drove to the home of a friend of appellant in Freeport. They stayed at appellant's friend's house for less than thirty minutes, and then went to a motel located off Beltway 8 and West Hilcroft, where they stayed for one week. On the morning of the shooting, appellant had a black Glock .40 when he left their apartment. Rivera saw him with the gun later that night in the motel room. Appellant told Rivera "that he had shot somebody because of [her]" and said that the victim's name was "Scama."

Rivera further testified that, after staying at the first motel, Rivera and appellant moved to the Ship Channel Motel, where they stayed for one week before police officers knocked on their motel door. Rivera answered the door, and appellant, who instructed Rivera to tell the officers that he was not there, hid underneath the sink. About one-half of an hour later, appellant came out of the motel room. Additionally, Rivera denied having an affair with La Machina. She stated that she never told anyone that she had an affair with La Machina and believed that Vega lied to appellant about the affair. Rivera conceded that she was convicted of the offense of possession of cocaine as a juvenile.

Norma Gonzalez testified that on May 19, 2005, while she was in the kitchen of her upstairs apartment, which faced the road leading out of the apartment complex, she heard five gunshots coming from outside of her kitchen window. The gunshots were approximately one second apart and seemed extremely close to her apartment. Gonzalez looked out of her kitchen window, but could not see anything. She then went to her bedroom window, which faces where the shooting occurred, and saw a man lying on the ground. The man, whose identity was unknown to Gonzalez, was bleeding to death, and over fifteen to twenty people were in the vicinity. After she heard the gunshots and before she went downstairs, Gonzalez heard tires squealing from the back of the apartment where the shooting occurred.

Gonzalez went downstairs to see what happened and attempted to perform CPR on the complainant. Five to ten minutes after the shooting, Gonzalez saw a "maroon" Dodge Ram truck, which she later described as a "dark green" Dodge Ram and owned by appellant, who she knew as "Pancho." The first time that Gonzalez saw appellant was within five minutes after the gunshots, when she heard the squealing tires. She saw appellant, driving the truck out of the apartment complex, pull into the middle of the road and talk to a female named Freda, who was in another vehicle.

Houston Police Department ("HPD") Officer K. Carr testified that on June 24, 2005, he located Rivera at the Ship Channel Motel. Carr knocked on the motel door, and Rivera answered. She stepped out of the door and began crying and was very upset. After police officers announced their presence and no one else exited the motel room, they entered the room with a police dog and found appellant.

Standard of Review

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We note that a jury is in the best position to evaluate the credibility of witnesses, and we are required to afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

Factual Sufficiency

In his sole point of error, appellant argues that the evidence is factually insufficient to support his conviction because the "only evidence supporting the verdict comes from two convicted felons and one witness whose testimony was inconsistent with other witnesses and the physical evidence." He notes that both Vega and Rivera have prior felony convictions. Appellant also asserts that although Gonzalez saw appellant leave the apartment complex after the shooting, she saw him "after she did CPR on the victim." He also notes that Gonzalez described the pertinent truck as maroon and then green. Finally, appellant asserts that the evidence shows that the complainant "was not combative."

A person commits the offense of murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen. Code. Ann. § 19.02(b)(1), (b)(2) (Vernon 2003). A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result. Id. § 6.03(a) (Vernon 2003). A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b) (Vernon 2003).

Vega did testify that she has prior convictions for unauthorized use of an auto vehicle and theft. Rivera also testified that she has a conviction for possession of cocaine as a juvenile. Moreover, there are inconsistencies in Gonzalez's testimony. However, a jury is free to believe or disbelieve all or any part of a witness's testimony. See Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). To the extent that there was any contradictory evidence, the jury, as the trier of fact, is the sole judge of the credibility of witnesses and the weight to be given to their testimony. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Robles v. State, 104 S.W.3d 649, 652 (Tex. App.--Houston [1st Dist.] 2003, no pet.).

In regard to appellant's assertion that the complainant "was not combative" and there was nothing "to provoke any violent action by either man," Vega testified that she saw appellant shoot the complainant after a verbal argument about the complainant's nephew and appellant's girlfriend. He then got into his green Dodge truck and fled the scene.

Moreover, Vega also stated that appellant had a black gun, and Rivera saw appellant with a black Glock .40 on both the morning and night of the shooting. Gonzalez testified that she saw appellant leave the apartment complex when she heard the sound of screeching tires coming from appellant's green Dodge truck, and Rivera also testified that appellant drove a green Dodge truck. Officer Carr stated that, when shown a photograph of a potential suspect, Vega identified the man who shot the complainant as appellant. Carr also testified that appellant was hiding from police officers when they found him present at the Ship Channel Motel. Additionally, Rivera testified that appellant told her that he had shot the complainant.

Viewing the evidence neutrally, we conclude that the evidence is not so weak that the verdict is clearly wrong or manifestly unjust or that the proof of guilt is against the great weight and preponderance of the evidence. Accordingly, we hold that the evidence is factually sufficient to support appellant's conviction for the offense of murder.

We overrule appellant's sole point of error.Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Taft, Jennings, and Alcala.

Do not publish. Tex. R. App. P. 47.2(b).

1.

See Tex. Pen. Code Ann. § 19.02(b) (Vernon 2003).

2.

Rivera testified that she was appellant's girlfriend.