Phillip Alvarado Jr. v. the State of Texas ( 2021 )

Affirmed and Memorandum Opinion filed May 4, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00921-CR
PHILLIP ALVARADO JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1579245
MEMORANDUM OPINION
Appellant Phillip Alvarado, Jr. appeals his conviction for murder. A jury
found appellant guilty, and after appellant pleaded true to an enhancement
paragraph, the judge assessed punishment at 25 years in prison. In a single issue,
appellant contends that the evidence is insufficient to support his conviction. We
affirm.
Background
On October 23, 2017, police officers responded to the scene of a shooting at
a motel in Harris County. There they discovered complainant Danny Garcia lying
lifeless on the walkway outside of a motel room. A woman, A.M., was near
complainant with bloodstains on her shirt, “yelling and screaming and crying.” An
autopsy revealed that complainant died from a “gunshot wound of the torso.” The
bullet entered through his back and exited through his front.
A.M. testified that she was working as a prostitute at the time and
complainant was helping her. On the night in question, they stopped at the motel
because A.M.’s acquaintance, L.R. was staying there and A.M. needed to use the
restroom. L.R. was sharing the room with appellant. A.M. went to L.R.’s room
while complainant went to talk to a potential client for A.M. A.M. had been to the
room a few times before to hang out and knew that Appellant used the room to bag
methamphetamines and that L.R. was also working as a prostitute.
According to A.M., after she entered the room, complainant returned and
knocked on the door to the room. Appellant opened the door and appellant and
complainant began arguing. A.M. did not recall what they were arguing about.
A.M. moved between the men and tried to grab complainant and thinks she may
have slapped him once. She said she could tell that the two men were about to fight
and she wanted to remove complainant and herself from the situation. L.R. began
screaming and A.M. “went deaf.” Appellant and L.R. then hurriedly left as
complainant fell to the floor and A.M. began to administer CPR.
A.M. said that no one was in the room at the time except appellant,
complainant, herself, and L.R. A.M. further explained that although she did not
hear a gunshot, it must have been a gunshot that made her “go deaf.” She was
raised around guns and said that if a gun fires close to a person it will make them
2
go deaf. Appellant had been right behind A.M. during the whole brief encounter as
she was trying to get complainant to leave. A.M. said that she did not see appellant
with a gun before or after the shooting, but she had previously seen that he kept
one in a drawer in the room. After complainant was shot, A.M. pulled him out of
the room to wait for an ambulance with the help of someone from an adjacent
room. Another bystander called 911.
A.M. admitted that she was not truthful with police officers when first
questioned after the shooting, denying she knew complainant and telling the
officers that she was using the restroom in a bush when she saw two Hispanic men
shoot complainant. She explained her subterfuge by saying she was scared and in
shock at the time and mad and hurt that complainant had died. A.M. acknowledged
that she had had something to drink and had taken a Valium before the shooting.
She also had charges pending against her at the time of her testimony, but she said
she had been willing to testify and met with the prosecutor before those charges
were filed.
In her testimony, L.R. corroborated that she had known A.M. for a short
time and on October 23, 2017, A.M. came to the room L.R. was sharing with
appellant to use the bathroom. L.R. said that only she and appellant were in the
room at the time. While A.M. was in the bathroom, complainant began beating on
the door. When appellant opened the door, complainant began “screaming
belligerently,” saying, “Just pop it, m— f—, just pop it.” L.R. did not recall any
physical confrontation or seeing A.M. become involved, but she said complainant
made his way into the room, A.M. yelled, there was a loud gunshot, and
complainant crumpled to the floor.
L.R. said that she has never carried a gun and did not have one on that day,
and although she had seen a gun in A.M.’s purse before, that played no role in that
3
night’s events. L.R. said that she knew appellant to have a gun that was readily
available to him, although she professed she did not know where he kept it. After
the shot was fired, appellant told L.R., “Get your s— and let’s go.” The two then
left quickly with L.R. barefoot. L.R. said that before they left, she saw A.M. run to
complainant and put her arms under his arms. A.M. said she was not going to call
the cops. L.R. also said that she did not actually see appellant shoot complainant,
but before they left, she saw a gun on the end of the bed. As they walked away
from the motel room, appellant told L.R., “I’m sorry.”
Video from a security camera that showed the outside of the motel room
during the relevant time period was admitted into evidence. The video shows two
people, identified by an officer as complainant and A.M., pull up to the room.
A.M. goes to the motel room door, and after briefly joining her, complainant walks
further down the walkway in front of the rooms. A male identified as appellant
opens the door and admits A.M. A short time later, complainant comes back to the
door, and when the door opens, he steps just inside. There appears to be a
commotion at that point between complainant and A.M. A.M. appears to be
holding or pushing complainant back, and he appears to be walking past her into
the room. The door closes again, and a minute or so later, another man and another
woman, identified as appellant and L.R., emerge and quickly walk away, with L.R.
apparently barefooted. Several minutes later, A.M. emerges and pulls complainant
out onto the walkway with the aid of a neighbor. Eventually, an EMS truck arrives
on scene.
Other evidence demonstrated that appellant and L.R. had rented the room
where the shooting occurred on consecutive nights, including the night of the
shooting, and DNA likely belonging to appellant was recovered from a beer can
found in the room. A recording of appellant’s interview with police was played for
4
the jury in which appellant asserted he was with his girlfriend on the day in
question but then admitted to being at the motel but leaving the girl that he was
with there and driving away. Appellant also presented an alibi witness who
testified that she was appellant’s girlfriend and he was with her at the time of the
shooting.
Discussion
In his sole issue, appellant challenges the sufficiency of the evidence to
support his conviction. In reviewing evidentiary sufficiency, we consider all the
evidence in the light most favorable to the verdict and determine whether, based on
that evidence and reasonable inferences therefrom, a rational trier of fact could
have found the challenged element or elements of the crime beyond a reasonable
doubt. See Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014); see also
Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). In reviewing historical facts that
support conflicting inferences, we presume that the jury resolved any conflicts in
the State’s favor and defer to that resolution. Whatley, 445 S.W.3d at 166. Each
fact need not point directly and independently to appellant’s guilt, so 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).
Circumstantial evidence is as probative as direct evidence in establishing guilt, and
circumstantial evidence alone can be sufficient to sustain a conviction. Id. We
examine events occurring before, during, and after the commission of the offense
for incriminating evidence. See id.We do not sit as a thirteenth juror and may not substitute our judgment for
that of the factfinder by reevaluating the weight and credibility of the evidence.
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). As judge of the
credibility of the witnesses, a jury may choose to believe all, some, or none of the
5
testimony presented. Cain v. State, 958 S.W.2d 404, 407 n.5 (Tex. Crim. App.
1997).
Appellant was charged with murder under section 19.02(b) of the Texas
Penal Code, which provides that “[a] person commits an offense if he: (1)
intentionally or knowingly causes the death of an individual; [or] (2) intends to
cause serious bodily injury and commits an act clearly dangerous to human life that
causes the death of an individual.” Tex. Penal Code § 19.02(b). Appellant argues
that the evidence was insufficient to prove he caused complainant’s death; instead,
appellant maintains that the evidence pointed to A.M. as the person who killed
complainant.
In support of this assertion, appellant makes references to several pieces of
evidence or inferences gleaned from the evidence, including (1) both A.M. and
L.R. said that they did not actually see appellant shoot complainant; (2) A.M.
pushed and may have slapped complainant shortly before he was shot; (3) L.R. saw
a small gun in A.M.’s purse the day before the shooting; (4) complainant was
either A.M.’s pimp or an angry client, which gave her a motive to shoot him; (5)
A.M. stated that she was between appellant and complainant when a gun fired; and
(6) L.R. testified that she saw a gun at the end of the bed before she and appellant
left the room, suggesting that A.M. must have been the one to dispose of the
weapon as no gun was found when the room was searched by police. Although
these are all factors the jury could have considered in making its finding, they do
not render the evidence insufficient.
As set forth above, although neither A.M. nor L.R. saw appellant shoot
complainant, their testimony, which was corroborated to a degree by the security
camera video, strongly supports the conclusion that he did. A.M. testified that
appellant and complainant were in the middle of an altercation, with appellant
6
immediately behind her to the point where she could feel him and complainant in
front of her to the point where she could touch him. A gun then fired in close
proximity to her, causing her to “go deaf” and complainant to fall to the floor. L.R.
described the scene similarly and said immediately before the gunshot,
complainant yelled at appellant, “Just pop it, m— f—, just pop it.” Both women
testified that they knew appellant to have a gun close at hand. Also, according to
both women, appellant left the scene immediately after the shooting, and L.R. said
that he told her “I’m sorry” as they walked away from the motel room.
A.M. explained that she was pushing complainant and may have slapped
him in her attempts to get complainant to leave a volatile situation. Although L.R.
noted that she had seen a small gun in A.M.’s purse the day before the shooting,
she also averred that that gun played no role in the shooting. As judge of the
weight and credibility of witness testimony, the jury was free to believe this
testimony. See Cain, 958 S.W.2d at 407 n.5. Also, the fact that L.R. saw a gun at
the end of the bed before she left the room does not necessarily indicate that A.M.
disposed of the gun or was the shooter. L.R. did not state or suggest that A.M. took
the gun or shot complainant, and nothing in the record suggests that appellant
could not have taken the weapon with him when he left. The fact that A.M. was
reportedly between appellant and complainant does not mean that appellant could
not have shot complainant.
As stated, although the jury could have considered the points appellant
raises, these arguments do not establish that A.M. shot complainant or otherwise
render the evidence insufficient. See Whatley, 445 S.W.3d at 166; Hooper, 214
S.W.3d at 13. Accordingly, we overrule appellant’s sole issue.
7
We affirm the trial court’s judgment.
/s/ Frances Bourliot
Justice
Panel consists of Justices Bourliot, Zimmerer, and Spain.
Do Not Publish — TEX. R. APP. P. 47.2(b).
8