Opinion issued June 30, 2015
In The
Court of Appeals
For The
First District of Texas
murder. 2 It assessed his punishment at 36 years in prison. In eight issues, Appellant claims the evidence was insufficient to support the judgment, asserts jury-charge error, challenges evidentiary rulings made by the trial court, claims improper jury argument by the State, and asserts the trial court erred by denying his motion to suppress.
We affirm.
Background
Around 12:30 a.m. on July 17, 2009, the complainant, Isaias Valdez, was driving his truck on I-45 when someone in another vehicle on the freeway shot him in the head, killing him. Detective C.E. Elliot, a homicide detective with the Houston police department, investigated the shooting. On October 23, 2009, Detective Elliot received information from Officer R. Bradley, an officer in the narcotics division, relating to the complainant’s murder.
Officer Bradley had been surveilling Appellant’s brother, Jonathan Siros (hereinafter “Jonathan”), as part of a narcotics investigation. Over time, Officer Bradley had observed Jonathan in the company of (1) Appellant, (2) Christopher Garcia, and (3) Juan Figueredo. Officer Bradley obtained a search warrant for an apartment at a location where he had observed Jonathan, Appellant, Garcia, and Figueredo. The warrant was executed on October 23, 2009. Appellant was not at
2 See id. § 19.02(b)(1) (Vernon 2011).
3
the apartment at the time the warrant was executed, but Officer Bradley had seen Appellant in the parking lot about an hour before the search. At the time of the search, Jonathan and Garcia were in the apartment along with other men. Although the warrant had been for illegal narcotics, no drugs were found.
Before the search, a confidential informant had stated the weapon used to kill the complainant may be at the apartment. Officer Bradley had learned from the homicide division that a weapon similar to an AR-15 rifle had been used to kill the complainant. During the search of the apartment, the officers found two AR-15 semiautomatic rifles. One of the rifles had been purchased by Appellant.
In addition to Jonathan and Garcia, another man detained at the apartment was Matthew Roy. Officer Bradley and another officer, Detective E. Cisneros, interviewed Roy. From Roy, the police obtained information regarding the shooting of the complainant. Based on this information, the officers obtained an arrest warrant for Garcia, charging him with the complainant’s murder.
On December 1, 2009, one of the other men that had been in the apartment, Figueredo, was arrested and charged by federal authorities with narcotics trafficking. Due to the significant amount of narcotics involved, Figueredo was facing a federal sentence of 292 to 365 months in prison. To obtain a reduction in his sentence, Figueredo agreed to talk to police about the murder of a confidential informant. In the course of these discussions, Figueredo also talked to police about
4
the complainant’s murder. Based on the information learned from the interviews, the police obtained an arrest warrant for Appellant.
The police conducted a videotaped interview of Appellant in which he discussed the complainant’s murder. Appellant stated that, on the night of the murder, he was staying at his father’s home. Garcia was a neighbor of Appellant’s father. Garcia came to the father’s home and asked Appellant if Appellant wanted to go for a ride. Appellant agreed, and they left in Garcia’s van.
With Garcia driving the van, they went to a club called El Huracan and parked in the parking lot. Appellant got out of the van and went to buy some tacos from a vendor in the parking lot. When he returned to the van, Garcia was in the passenger seat. Appellant got in the driver’s seat, and Garcia told Appellant, “Let’s go.” Appellant got on the freeway to head back to his father’s home. He claimed that, as they were driving down the freeway, Garcia suddenly pulled out a rifle and shot the complainant, who was in a truck on the freeway. Appellant stated that he did not know that Garcia had a weapon or that Garcia had planned to shoot the complainant.
Initially, Appellant was charged with the offense of murder with respect to the complainant’s death. Appellant was later re-indicted for the offense of capital murder.
5
Figueredo testified at Appellant’s trial. He explained that, in 2008 and 2009, he had trafficked large amounts of narcotics, between 35 and 100 kilograms of cocaine per week, into the United States from Mexico. He sold the illegal drugs to “mid-level people” who in turn sold it to others for sale on the streets. Figueredo became acquainted with Appellant’s brother, Jonathan, when Jonathan bought a quantity of cocaine for street sale. The two became friends and would at times deal narcotics together.
Figueredo had known the complainant, Isias Valdez, for a number of years and considered him to be a “close acquaintance.” In May 2009, the complainant obtained five kilograms of cocaine from Figueredo and Jonathan to sell on the street. The complainant paid for four kilograms, but he did not have the money to pay for the fifth kilogram. Figueredo and Jonathan agreed that the complainant could pay them the $19,000 he owed for the fifth kilogram after he sold it. The complainant owed half of the $19,000 to Figueredo and half to Jonathan.
Figueredo testified that the complainant did not pay him and Jonathan for the fifth kilogram. Figueredo testified that he had not been bothered by the complainant’s non-payment and nonetheless had still considered the complainant to be his friend. He thought that the complainant would make an effort “to make up for anything he lost.”
6
Figueredo testified that the complainant’s non-payment of the debt meant more to Jonathan because Jonathon had much less money than Figueredo. Jonathan asked Figueredo for his assistance in locating the complainant. On July 17, 2009, Figueredo received a call from a cocaine distributor, informing Figueredo that the complainant was at El Huracan. Figueredo passed the information along to Jonathan.
Figueredo drove his car to El Huracan and parked in the parking lot.
Figueredo then saw Jonathan, Garcia, and Appellant arrive at the club in a van. They parked next to Figueredo’s car. Figueredo could not see who was driving the van because it was parked close to his car, and it was dark.
Jonathan got out of the van and got into the passenger seat of Figueredo’s car. Jonathan told Figueredo that Appellant and Garcia were in the van. The men knew that the complainant was in the club because they saw his truck in the parking lot. The men sat in the parking lot, waiting for the complainant, but they did not go into the club. After about 20 minutes, the complainant still had not come out of the club. Figueredo and Jonathan left in Figueredo’s car to go to a different club called Pleasures, which was about 20 minutes away from El Huracan. As they drove to Pleasures, Jonathan received a call from Appellant. During the call, Appellant said something to Jonathan about a shooting. Figueredo heard Jonathan laugh at a comment Appellant made to Jonathan during the call.
7
Appellant and Garcia arrived at Pleasures about 10 minutes after Figueredo and Jonathan had arrived there. The four men sat down at a table inside the club. Appellant and Garcia began talking about what had happened at El Huracan after Figueredo and Jonathan had left that location.
At trial, Figueredo testified that Garcia boasted, “I took one shot and domed him,” meaning “a headshot.” Figueredo then heard Appellant brag that it was his good driving skills that allowed Garcia to make the shot. From what he had heard being said that night, Figueredo inferred that Garcia had shot the complainant while Appellant was driving.
Three months later, Figueredo met Jonathan in the parking garage of an apartment complex to pick up money Jonathan was “turning in” to Figueredo. Garcia and Appellant were also present. Jonathan gave Figueredo the money but then stated to Figueredo that he needed some of the money back to give to Appellant. Figueredo testified that Jonathan told him that Appellant was asking for money “for doing the killing [of the complainant] for [Jonathan].” Figueredo further testified that he gave $5,000 back to Jonathan to give to Appellant.
As stated, Appellant was charged with the offense of capital murder. The indictment alleged that Appellant had “unlawfully, . . . intentionally and knowingly” caused the death of the complainant “for the promise of remuneration” from Jonathan.
8
In addition to capital murder, the court’s jury charge also instructed the jury on the lesser-included offense of murder. The trial court further instructed the jury on the law of parties and on accomplice-witness testimony. The jury found Appellant guilty of the offense of murder and assessed Appellant’s punishment at 36 years in prison.
This appeal followed. Appellant raises eight issues.
Sufficiency of the Evidence In his first issue, Appellant asserts that the evidence was insufficient to support the judgment of conviction for the offense of murder. Specifically, Appellant asserts that the evidence was insufficient to show that he was guilty of murder under the law of the parties. A. Standard of Review We review the sufficiency of the evidence establishing the elements of a criminal offense for which the State has the burden of proof under a single standard of review, regardless of whether an appellant presents the challenge as a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49, 53–54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority holding of Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)). This standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
9
2781, 2789 (1979). See Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).
Pursuant to the Jackson standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational fact finder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be insufficient under the Jackson standard in two circumstances: (1) the record contains no evidence, or merely a “modicum” of evidence, probative of an element of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.
The sufficiency-of-the-evidence standard gives full play to the responsibility of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court presumes that the fact finder resolved any conflicts
10
in the evidence in favor of the verdict and defers to that resolution, provided that the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
In our review of the record, direct and circumstantial evidence are treated equally; circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235 S.W.3d at 778. Finally, “[e]ach 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.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). B. Legal Principles A person commits murder if he intentionally or knowingly causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011); Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013); Nelson v. State, 405 S.W.3d 113, 123 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d). A person may be convicted 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 both. See TEX. PENAL CODE ANN. § 7.01(a) (Vernon 2011). As relevant under the instant circumstances, 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,
11
encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a).
Mere presence of a person at the scene of a crime either before, during or after the offense, or even flight from the scene, without more, is insufficient to sustain a conviction as a party to the offense; however, combined with other incriminating evidence it may be sufficient to sustain a conviction. Thompson v. State, 697 S.W.2d 413, 417 (Tex. Crim. App. 1985). In determining whether a defendant participated as a party in the commission of an offense, the jury may consider events that occurred before, during or after the offense, and may rely on acts that show an understanding and common design. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1996). C. Analysis Appellant does not dispute that Garcia shot the complainant or that Appellant was driving the vehicle from which Garcia fired the shot. Rather, Appellant asserts that the evidence was not sufficient to show that he is guilty under the law of the parties because he was unaware of Garcia’s plan to shoot the complainant.
In his videotaped statement, which was admitted into evidence, Appellant claimed that he was completely surprised when Garcia pulled out a rifle and shot
12
the complainant. He stated that he did not know that there was a weapon in Garcia’s van or that Garcia planned to shoot the complainant.
In contrast, Figueredo testified that, shortly after the murder, he heard Appellant boasting and bragging that Garcia had only been able to shoot the complainant because Appellant had driven so well. Figueredo testified that Appellant bragged that Garcia could not have made the shot if Appellant had not “drove straight.” Figueredo further testified that he heard Appellant boast that Garcia “wouldn’t have been able to get the shot off if [Appellant] wouldn’t have drove.”
Here, the jury, as the trier of fact, was the sole judge of the credibility of the witnesses and of the weight to be given their testimony. See TEX. CODE. CRIM. PROC. ANN. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). Accordingly, the jury was entitled to believe Figueredo’s testimony and disbelieve Appellant’s statement that he was surprised when Garcia shot the complainant. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008).
Appellant’s statements made at the club, Pleasures, on the night of the murder show that he intentionally assisted Garcia in the commission of offense. Appellant’s statement indicated that he maneuvered the van into position so that Garcia could aim accurately and shoot the complainant, who was in a vehicle travelling on the freeway. Appellant not only admitted that it was his driving that
13
enabled Garcia to shoot the complainant but boasted that it was his driving that facilitated the fatal shot.
We conclude that a rational jury could have found beyond a reasonable doubt that Appellant, acting with the intent to promote or to assist the commission of the offense, aided or attempted to aid Garcia to commit the offense of murder. See TEX. PENAL CODE ANN. § 7.02(a)(2); see also Hoang v. State, 263 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (concluding that evidence was sufficient to support murder conviction as a party when accused maneuvered his vehicle in way to facilitate shooter’s ability to hit complainant’s vehicle). We hold that the evidence was sufficient to support the judgment of conviction.
We overrule Appellant’s first issue.
Accomplice-Witness Instruction In his third issue, Appellant asserts the trial court erred in instructing the jury to determine whether Figueredo was an accomplice as a matter of fact, rather than instructing the jury that Figueredo was an accomplice as a matter of law. A. Standard of Review A trial court must submit to the jury “the law applicable to the case.” TEX.
CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2012); Hill v. State, 451 S.W.3d 392, 395 (Tex. App.—Houston [1st Dist.] 2014, no pet.). When a statute requires an instruction under the circumstances, that instruction is the “law applicable to the
14
case,” and the trial court must instruct the jury “whatever the statute or rule requires.” Oursbourn v. State, 259 S.W.3d 159, 180 (Tex. Crim. App. 2008).
We review a trial court’s decision to deny a requested accomplice-witness jury instruction for an abuse of discretion. See Smith v. State, 332 S.W.3d 425, 439–40 (Tex. Crim. App. 2011); Hill, 451 S.W.3d at 395–96. A trial court abuses its discretion only if its decision is “so clearly wrong as to lie outside the zone within which reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). B. Legal Principles An accomplice is someone “who participates with a defendant before, during, or after the commission of the crime and acts with the requisite culpable mental state.” Cocke v. State, 201 S.W.3d 744, 748 (Tex. Crim. App. 2006). An accomplice is also someone who is charged, or under the evidence could have been charged, with the same offense as the defendant or a lesser-included offense. Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim. App. 2013). To be considered an accomplice, the witness “must have engaged in an affirmative act that promote[d] the commission of the offense that the accused committed.” Smith v. State, 332 S.W.3d at 439 (citing Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007)). Evidence must exist connecting the alleged accomplice to the offense as a “blameworthy participant,” but “whether the alleged accomplice-
15
witness is actually charged or prosecuted for his participation is irrelevant.” Cocke, 201 S.W.3d at 748 (citing Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998)).
The evidence at trial dictates whether an accomplice as a matter of law or fact instruction is required. Smith, 332 S.W.3d at 439 (citing Cocke, 201 S.W.3d at 747). A witness is an accomplice as a matter of law if he has been indicted for the same offense or a lesser included offense, or when the evidence clearly shows that the witness could have been so charged. Cocke, 201 S.W.3d at 748; Druery, 225 S.W.3d at 498. The trial court is required to give the jury an accomplice-witness instruction if a witness is an accomplice as a matter of law. Cocke, 201 S.W.3d at 748. However, “the evidence must leave no doubt that a witness is indeed an accomplice as a matter of law.” Smith, 332 S.W.3d at 441. If the evidence does not clearly show the witness is an accomplice as a matter of law, or if the parties present conflicting evidence as to whether the witness is an accomplice, the trial court should allow the jury to decide whether the witness is an accomplice as a matter of fact with an instruction defining the term “accomplice.” Druery, 225 S.W.3d at 498–99; Cocke, 201 S.W.3d at 747–48. C. Analysis Appellant asserts that the trial court should have instructed the jury that Figueredo was an accomplice as a matter of law because he could have been
16
charged with the offense of murder with respect to the complainant. Appellant points out that the evidence showed Figueredo was an admitted “drug kingpin” to whom the complainant owed over $9,000 for a kilogram of cocaine. He also points out that the evidence showed that Figueredo called Jonathan and told him that the complainant was at the El Huracan club. Appellant further points out that, three months later, Figueredo gave money to Appellant for the murder of the complainant. However, when this evidence is read in the context of the entire record, there were fact issues with respect to whether Figueredo was an accomplice.
Figueredo’s testimony indicated that Jonathan was upset with the complainant with respect to the unpaid debt. However, Figueredo testified that he had not been concerned about the money the complainant owed him. Figueredo stated that he “was never bothered about it.” He testified that he still considered the complainant to be his friend even though he owed him money. Although he testified that he helped Jonathan locate the complainant on the night of the murder, no evidence indicates that Figueredo assisted in locating the complainant for the purpose of murdering him rather than for the purpose of collecting the money from him.
With respect to the money that was paid to Appellant several months after the murder, Figueredo testified that he met with Jonathan to collect money that
17
Jonathan owed him. After Jonathan handed Figueredo the money, Jonathan asked for money back, stating that he needed to give some of it to Appellant. Figueredo testified Jonathan told him that he needed to give Appellant “for doing the killing for [Jonathan].”
In short, the record shows that conflicting evidence was presented at trial with regard to whether Figueredo was an accomplice with respect to the complainant’s murder. We conclude that the evidence does not clearly show that Figueredo was an accomplice as a matter of law. Thus, we hold that the trial court did not abuse its discretion when it did not instruct the jury that Figueredo was an accomplice as a matter of law.
We overrule Appellant’s third issue.
Corroborating Testimony
In his second issue, Appellant asserts that there “is insufficient evidence to corroborate the accomplice–witness testimony [of Figueredo], implicating Appellant as a party to murder.” A. Legal Principles The accomplice-witness statute states,
A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.
18
TEX. CODE CRIM. PROC. ANN. art. 38.14 (Vernon 2005). When reviewing the sufficiency of non-accomplice evidence under Article 38.14, we decide whether the inculpatory evidence tends to connect the accused to the commission of the offense. Smith, 332 S.W.3d at 442. The sufficiency of non-accomplice evidence is judged according to the particular facts and circumstances of each case. Id. The direct or circumstantial non-accomplice evidence is sufficient corroboration if it shows that rational jurors could have found that it sufficiently tended to connect the accused to the offense. Id. When there are conflicting views of the evidence— one that tends to connect the accused to the offense and one that does not—we will defer to the factfinder’s resolution of the evidence. Id. Therefore, it is not appropriate for appellate courts to independently construe the non-accomplice evidence. Id. B. Analysis Under Article 38.14, it is not necessary for the corroborating evidence to directly link the accused to the crime. Richardson v. State, 879 S.W.2d 874, 880 (Tex. Crim. App. 1993). The corroborating evidence also does not need to be sufficient by itself to establish guilt beyond a reasonable doubt. Id. “Were the law otherwise, the testimony of the accomplice would be valueless.” Id.
“‘Proof that the accused was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may
19
tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction.’” Id. (quoting Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984)). Although Appellant claimed that he did not know that Garcia had the AR-15 rifle in the van or that Garcia planned to shoot the complainant, Appellant admitted that he was driving the vehicle from which Garcia shot the complainant. In other words, Appellant was not just passively at the scene of the crime; rather, he was controlling the vehicle on the freeway from which Garcia was able to shoot the complainant in the head, while the complainant was in another vehicle traveling down the freeway. The jury could have found it unlikely that Appellant unwittingly drove in a manner that would have allowed Garcia to make an accurate shot into another moving vehicle on the freeway.
In addition, before executing the search warrant for the apartment at which the police had surveilled Jonathan, the police learned from an informant that the weapon involved in the complainant’s murder may be in the apartment. During the search, they recovered two AR-15 rifles. The evidence showed that one of the rifles had been purchased by Appellant. Although the exact type of firearm used in the murder was not determined, the police were able to determine that a high- powered rifle had been used. Officer Bradley testified at trial that the homicide division believed the weapon used had been “something like an AR-15 [rifle].”
20
We hold that, giving proper deference to the jury’s resolution of the facts, the cumulative force of the non-accomplice evidence tends to connect Appellant to the complainant’s murder. We overrule Appellant’s second issue.
Extraneous-Offense Evidence In his fourth issue, Appellant asserts “[t]he trial court erred by allowing evidence of extraneous offenses of (1) Appellant and (2) many instances of other parties’ illegal extraneous behavior into evidence.” Appellant asserts that “the jury heard” about these extraneous offenses “[b]ecause of the court’s adverse rulings on the motion in limine and motion to suppress.” However, as discussed infra, the trial court properly denied Appellant’s motion to suppress. In addition, a ruling on a motion in limine does not preserve error for review. See TEX. R. APP. P. 33.1; Wilson v. State, 7 S.W.3d 136, 144 (Tex. Crim. App. 1999).
Appellant lists, in bullet-point format, 26 instances of when he claims the trial court improperly admitted extraneous-offense evidence. However, Appellant fails to provide record references for 25 of these instances. 3 See TEX. R. APP. P.
3 The only evidence for which Appellant offers a record citation is evidence related to the execution of the search warrant, which resulted in the discovery of two AR-
15 rifles, the same type of weapon believed to have been used to kill the complainant. While he asserted the rifles were outside the scope of the search warrant, Appellant does not point to where in the record he lodged an extraneous-
offense objection to this evidence. A point of error on appeal must comport with the objection made at trial. Appellant did not preserve his extraneous-offense complaint for review with respect to the evidence related to the search warrant because he did not object to this evidence on such basis at trial. See TEX. R. APP.
P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).
21
38.1(i) (providing appellant’s brief must contain clear and concise argument for contentions made, with appropriate citations to authorities and the record). Courts have held that issues on appeal are waived if an appellant fails to support his contentions by citations to the record. See Jensen v. State, 66 S.W.3d 528, 545 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (holding appellant waived review of his complaint because section of his brief on that issue did not contain citations to the record); Huerta v. State, 933 S.W.2d 648, 650 (Tex. App.—San Antonio 1996, no pet.) (relying on rule that appellant must direct court to specific portion of record supporting complained of error in concluding issue waived).
Given the absence of citations to the record, it follows that Appellant has not pointed us to an instance in which he objected during trial to the extraneous- offense evidence of which he complains. To preserve a complaint for appellate review, an appellant must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. TEX. R. APP. P. 33.1(a)(1)(A).
In any event, much of the evidence Appellant cites pertains to the narcotics trafficking operation engaged in by Figueredo and Appellant’s brother, Jonathan. Relatedly, Appellant complains of evidence pertaining to the extraneous murder of a narcotics informant, Enrique Velasquez. Appellant asserts that, in admitting the complained-of evidence, the State characterized Appellant to be “of the same
22
character as [Figueredo]: a violent drug dealer, possibly involved in multiple murders, possessing an AR-15 found with other weapons, and involved in organized crime involving tens of millions of dollars.”
As the State points out, there were instances at trial in which evidence of Figueredo’s and Jonathan’s drug trafficking and evidence of Velasquez’s murder were admitted without objection by Appellant. Even though he raised extraneous- offense and relevancy objections at trial on occasion to this type evidence, Appellant did not object each time it was offered nor did he request a running objection. “[A]n objection must be made each time inadmissible evidence is offered unless the complaining party obtains a running objection or obtains a ruling on his complaint in a hearing outside the presence of the jury.” Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008). Thus, Appellant’s complaints regarding the evidence were not preserved. See id.
In addition, as the State further points out, Appellant also offered evidence regarding the narcotics-trafficking operation and regarding Velasquez’s murder. The erroneous admission of evidence is harmless if the same evidence is offered by a defendant in another part of the trial. See Saldano v. State, 232 S.W.3d 77, 102 (Tex. Crim. App. 2007); see also Amunson v. State, 928 S.W.2d 601, 608 (Tex. App.—San Antonio 1996, pet. ref’d) (“When the defendant offers the same
23
evidence to which he earlier objected, he is not in a position to complain on appeal.”).
We overrule Appellant’s fourth issue.
Extraneous-Offense Instruction In his fifth issue, Appellant asserts that “[t]he trial court erred by improperly charging the jury on extraneous offenses.” With regard to extraneous offenses, the trial court instructed the jury as follows:
You are further instructed that if there is any evidence before you in this case regarding the defendant’s committing an alleged offense or offenses other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offense or offenses, if any, the same in determining preparation, plan, knowledge, accident of the defendant, and even then you may only consider the motive, opportunity, intent, identity, or absence of mistake or if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.
Appellant claims that, in addition to this instruction, the trial court had a duty to instruct the jury sua sponte that “none of the extraneous offenses” of Figueredo, Jonathan, Velasquez, or Garcia “could be imputed to Appellant.” Appellant asserts that the trial court had duty to give this instruction even though he did not object to the lack of such instruction at trial.
In support of his assertion, Appellant cites Rule of Appellate Procedure 44.2(b), which governs harm analysis relating to non-constitutional error.
24
Appellant also cites authority for the general proposition that the trial court must instruct the jury regarding the law applicable to the case. However, as the State points out, Appellant has failed to cite any authority to support his assertion that the trial court was required to instruct the jury that the extraneous offenses of Figueredo, Jonathan, Velasquez, or Garcia could not be imputed to Appellant. Thus, Appellant has inadequately briefed this issue by neglecting to present argument and authorities as required by Texas Rule of Appellant Procedure 38.1(h). See TEX. R. APP. P. 38.1(h); see also Cardenas v. State, 30 S.W.3d 384, 393–94 (Tex. Crim. App. 2000) (deciding in capital murder case that defendant’s points complaining of lack of jury instruction on voluntariness of defendant’s statements to police were inadequately briefed when no authority or accompanying argument provided to support claim); Smith v. State, 907 S.W.2d 522, 532 (Tex. Crim. App. 1995) (overruling point of error because arguments and authorities presented were “different in character” from error alleged under the point).
We overrule Appellant’s fifth issue.
Improper Jury Argument
In his sixth issue, Appellant claims, “The State committed reversible error [during the punishment phase] by arguing that Appellant is part of the ‘drug world’ of the accomplices and should be punished accordingly.” Appellant did not, however, object to the State’s remark during closing argument. Thus, Appellant
25
has failed to preserve this complaint for our review. See TEX. R. APP. P. 33.1(a); Mays v. State, 318 S.W.3d 368, 394 (Tex. Crim. App. 2010) (“[W]e will not review the propriety of the prosecutor’s arguments, [when] appellant failed to object to those arguments at trial.”).
We overrule Appellant’s sixth issue.
Principal-Actor Instruction In his seventh issue, Appellant asserts that the trial court erred by submitting a jury instruction permitting the jury to find him guilty of the offense of murder as a principal actor. Appellant correctly points out that the jury charge permitted the jury to find him guilty of the complainant’s murder as either a party to the offense or as the principal actor.
Appellant asserts that no evidence was offered to show that he was guilty of the complainant’s murder as the principal actor. He points out that the evidence showed that Garcia shot the complainant; no evidence was offered to show that Appellant was the shooter.
Presuming without deciding that the submission of the primary-actor instruction was error, we turn to the question of harm. When, as here, the appellant did not object to the alleged error, we will reverse only if the error is “‘so egregious and created such harm’” that the defendant did not receive a fair and impartial trial. Sakil v. State, 287 S.W.3d 23, 26 (Tex. Crim. App. 2009) (quoting
26
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). We consider (1) the entire jury charge, (2) the state of the evidence, including contested issues and the weight of probative evidence, (3) the parties’ arguments, and (4) any other relevant information found in the record as a whole. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).
During closing argument, the State argued only that Appellant was guilty as a party to the offense. In this regard, the prosecutor stated, “[T]he evidence that has been presented to you over these last two days shows beyond a reasonable doubt that [Appellant] assisted Christopher Garcia when Christopher Garcia used this gun or the other gun that was purchased by [Appellant] to murder Isaias Valdez.”
To show the principal-actor instruction was harmful, Appellant points to a note sent out by the jury during deliberations that refers to the AR-15 rifle as “belonging to” the Appellant. He asserts that this indicates the jury may have been misled into believing that Appellant was the shooter and that it could convict him as the principal actor. However, simply because the jury may have considered the weapon to belong to Appellant does not necessarily mean that the jury thought he was the shooter. The jury may have thought that Appellant furnished the weapon to Garcia to use to commit the offense.
27
In any event, if, as Appellant claims, guilt as the principal actor would be an irrational finding under the evidence, then it is highly unlikely that a rational jury would base its verdict on the principal-actor theory. Cf. Cathey v. State, 992 S.W.2d 460, 466 (Tex. Crim. App. 1999) (applying same reasoning in case in which appellant argued that he was harmed by parties instruction when it would have been irrational for jury to find him guilty as a party). As discussed under the first issue, the evidence was sufficient to support Appellant’s conviction for the offense of murder as a party. “When a charge authorizes a jury to convict a defendant as a principal or a party and the evidence establishes the defendant’s guilt only as a party, error in submitting the defendant’s guilt as a principal is harmless under the Almanza standard.” Payne v. State, 194 S.W.3d 689, 698 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d); see also Washington v. State, 449 S.W.3d 555, 567–68 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding defendant not harmed by submission of principal-actor instruction when evidence showed he was guilty as a party). We conclude that any error in instructing the jury that Appellant could be found guilty as the principal actor was harmless error. Having failed to show harm, Appellant also has failed to show egregious harm. See Cathey, 992 S.W.2d at 466.
We overrule Appellant’s seventh issue.
28
Motion to Suppress
In his eighth issue, Appellant claims that the trial court erred by denying his motion to suppress evidence of the two AK-15 rifles seized during the search of an apartment conducted pursuant to a search warrant. During the suppression hearing, which was conducted during trial, Appellant asserted that the police exceeded the scope of the search warrant because it was issued only for the seizure of narcotics. The State responds that the trial court properly denied the motion to suppress because Appellant did not show that he had standing to challenge the search of the apartment. A. Standard of Review and Applicable Legal Principles The Fourth Amendment of the U.S. Constitution protects individuals from unreasonable searches and seizures. State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013); Richardson v. State, 865 S.W.2d 944, 948 (Tex. Crim. App. 1993). The rights secured by the Fourth Amendment are personal; accordingly, an accused has standing to challenge the admission of evidence obtained by an “unlawful” search or seizure only if he had a legitimate expectation of privacy in the place invaded. See Matthews v. State, 431 S.W.3d 596, 606 (Tex. Crim. App. 2014); Betts, 397 S.W.3d at 203. The defendant who challenges a search has the burden of proving facts demonstrating a legitimate expectation of privacy. Betts, 397 S.W.3d at 203. He must show that he had a subjective expectation of privacy
29
in the place invaded and that society is prepared to recognize that expectation of privacy as objectively reasonable. Id.
When determining whether a defendant has demonstrated an objectively reasonable expectation of privacy, we examine the totality of the circumstances surrounding the search, including (1) whether the accused had a property or possessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, before the intrusion, he had taken normal precautions customarily taken by those seeking privacy; (5) whether he put the place to some private use; and (6) whether his claim of privacy is consistent with historical notions of privacy. Id. at 203–04; Granados v. State, 85 S.W.3d 217, 223 (Tex. Crim. App. 2002). This is a non-exhaustive list of factors, and no one factor is dispositive. See Granados, 85 S.W.3d at 223. “‘Although we defer to the trial court’s factual findings and view them in the light most favorable to the prevailing party, we review the legal issue of standing de novo.’” Betts, 397 S.W.3d at 204 (quoting Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004)). B. Analysis Appellant did not testify at the suppression hearing. We agree with the State that no evidence was offered to satisfy the factors for determining whether Appellant had standing to challenge the search of the apartment. Appellant offered
30
no evidence to show that (1) he had a property or possessory interest in the place invaded; (2) whether he was legitimately in the place invaded; (3) whether he had complete dominion or control and the right to exclude others; (4) whether, before the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) whether he put the place to some private use; or (6) whether his claim of privacy is consistent with historical notions of privacy.
During trial, Officer Bradley testified that he had surveilled Appellant’s brother Jonathan at the apartment. The officer testified that he had seen Appellant as well as Garcia, Jonathan, and Figueredo at the “location” of the apartment. Without further explanation, Officer Bradley stated that these men were “connected” with the apartment. Officer Bradly testified that, less than an hour before the search, he had seen Appellant in the parking lot of the apartment complex looking at a truck with other people. The officer stated that Appellant left before the search warrant was executed. No evidence was presented that Appellant had any possessory interest in the apartment, any right to control the apartment, or used the apartment for any purpose. In fact, no evidence was presented that Appellant had ever been inside the apartment.
Furthermore, the search-warrant affidavit, admitted into evidence, stated that Emmanuel Valdez lived at the apartment. The affidavit also stated that the
31
apartment was “in the charge of and controlled by” Jonathan, Garcia, and Figueredo. No mention was made of Appellant in the affidavit.
On this record, we conclude that Appellant has not met his burden to establish a legitimate expectation of privacy such that he would have standing to contest the search of the apartment in which the AR-15 rifles were seized. We hold that the trial court properly denied Appellant’s motion to suppress.
We overrule Appellant’s eighth issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).