Selvin Canales Chirinos v. State ( 2011 )

Affirmed and Memorandum Opinion filed January 11, 2011.

In The

Fourteenth Court of Appeals

NO. 14-09-00919-CR

Selvin Canales Chirinos, Appellant

v.

The State of Texas, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 1234856

MEMORANDUM OPINION

Appellant Selvin Canales Chirinos challenges his conviction for capital murder on the grounds that the evidence is legally and factually insufficient and that the trial court reversibly erred by instructing the jury on the law of transferred intent.  We affirm.

BACKGROUND

On April 17, 2007, several individuals attempted to hijack a silver[1] Ford F-150 pick-up truck on Highway 59 North in Harris County.  The incident began on the exit ramp for Bissonnet Street and culminated at the intersection of the 59 North Service Road (the “Service Road”) and Bissonnet.  Several people witnessed the incident both on and off the freeway.  The incident involved three pick-up trucks:  the silver Ford, a white Chevy, and a green Chevy.  After numerous shots were fired, two individuals were found dead, one in the Bissonnet intersection and another in the back of the abandoned silver Ford parked in a nearby strip mall. 

During their investigation, Houston Police Department (“HPD”) officers quickly identified appellant as a suspect and brought him in for questioning.  Appellant voluntarily made two video-taped statements.  In the first, he denied his involvement in the attempted hijacking, explaining that he was shot in the arm as an innocent bystander.  After watching the red-light camera video, however, he made another statement in which he admitted his involvement in the incident.  Appellant provided the following information in his second statement.  He explained that on April 16, two individuals he identified only as “Brujo” and “the Cousin” offered him $500 to help “steal” a “load of wetbacks.”  Appellant then called an individual he identified only as “Gustavo” to help.  The plan involved using two trucks to get in front of and behind the silver Ford, which the cousin and Brujo knew was carrying illegal aliens.  They also knew the silver Ford would be exiting 59 North at Bissonnet, and they planned to trap it and “intimidate” the driver into giving up his load of illegal aliens.  Brujo and the Cousin told appellant that the illegal aliens would not have weapons but that Brujo and the Cousin would be carrying guns.

On the day of the incident, Gustavo was driving appellant’s white Chevy truck with appellant as the passenger.  They drove behind the silver Ford as it exited Highway 59 at Bissonnet.  Brujo and the Cousin were driving the green Chevy, which pulled in front of the silver Ford truck on the Bissonnet exit ramp.  The green Chevy stopped, forcing the silver Ford to stop behind it.  The Cousin got out of the passenger side of the green Chevy, and appellant got out of the white Chevy.  They both approached the silver Ford; the Cousin was armed, but appellant claimed that he was not.  As appellant approached the driver’s side of the silver Ford, someone in the backseat shot at him through the window of the truck.  As appellant ran back to his truck, he heard several shots fired. 

The green Chevy and the silver Ford exited onto the Service Road and were involved in an accident at the light at Bissonnet.  When Gustavo and appellant arrived at the light at Bissonnet, appellant saw that there had been an accident at the intersection.  He also saw shooting between the green and silver trucks.  Appellant stated that the green Chevy “took off” through the intersection to the left, and the silver Ford was driven down the Service Road until it turned into a parking lot.  Gustavo drove appellant’s truck down the road behind the silver Ford and took appellant to the hospital.  Appellant expressed the Cousin’s threat that if anything went wrong, “they” would kill the person who talked.

Appellant was indicted and tried for the capital murder of the decedent found at the scene, Moises Mejia.  Specifically, he was charged with “unlawfully, while in the course of committing and attempting to commit the kidnapping of Moises Mejia, intentionally caus[ing] the death of Moises Mejia by shooting Moises Mejia with a deadly weapon, namely, a firearm.”

Appellant’s statement was admitted at his trial, together with the red-light camera video, various crime-scene photos, bullets and fragments, and the autopsy reports from both decedents, among other things.

The red-light camera video showed a silver pick-up truck running the red light on the Service Road at Bissonnet, hitting a brown sedan on Bissonnet in the intersection, then coming to a stop.  Several individuals jumped out of the back and the cab of the silver truck and ran away.  A white pick-up truck drove up on the driver’s side of the silver truck, and a green pick-up truck pulled in behind the silver truck.  The actions between the white pickup and the silver truck’s driver’s side are hidden from the angle of the camera by the body of the silver truck.  Several small explosions appeared in the front windshield of the green truck.  An individual exited the passenger side of the green truck and approached the silver truck, only to quickly return to the green truck.  The silver truck drove away from the scene and continued straight on the Service Road.  The white truck, fully visible at this point, appeared to have the front driver’s door open.  Both it and the green truck followed shortly after the silver truck; the green truck ran over something in the road as it left the scene.  The entire incident at the intersection took less than a minute to unfold.  Once several cars cleared the intersection, the video showed what appeared to be a person lying on the street in the intersection of Bissonnet and the Service Road.

Numerous witnesses testified, including several police investigators and analysts, an individual who saw the incident beginning on 59 North, and two individuals who observed what occurred at the intersection of Bissonnet and the Service Road.  The witness who saw the incident from Highway 59 explained that he was caught in slow-moving traffic.  He was in the lane next to the Bissonnet exit and saw, through his passenger window, two Hispanic-looking individuals approaching a silver Ford pick-up truck with guns drawn.  These two individuals approached the silver Ford from behind and began shooting into the back window of the silver truck.  He testified that the silver Ford drove down the exit ramp, while he continued on 59 North to the next exit, Gessner Street, and turned around to come back to the scene.  He stated that he called 911 to report the incident and that he saw a green Chevy pick-up truck with bullet holes through the windshield at Gessner in the U-turn lane.  Finally, he explained that because everything occurred so quickly, he was unable to identify the individuals who were shooting at the silver truck.

Two other witnesses described the scene at the Bissonnet intersection.  One witness testified that she was pushing her bicycle across the intersection on Bissonnet when she heard a car crash.  When she turned to look, she saw several people running out of a silver truck.  She saw another truck pull up behind the silver truck and saw gunfire coming from that truck, which she testified was green.  She testified that she saw “[a]t least three guys” running from the silver truck and that “[t]he fourth one was the one that got injured.”  According to this witness, when the green truck drove away, it ran over the decedent lying in the street.  She stated that she never saw any gunfire coming from the silver truck.

The other witness explained that he was at the stop light on Bissonnet at the intersection with the Service Road when he saw a silver truck run into a car in the intersection.  He watched an individual run out of the silver truck toward a corner gas station; he then turned back and saw that a dark green truck had pulled closely behind the silver truck.  He testified that it appeared to him that people were shooting from inside the green pick-up truck through the window at the other truck.  He stated that he did not see anyone from the silver truck shooting.  He, like the other eyewitness, testified that the green truck drove over the decedent lying in the street at the scene.  Finally, when asked whether he saw where the decedent came from, he stated, “I’m not certain, but it appeared to me that that person came from the first truck that came into the intersection.”

The HPD Crime Scene investigator who examined the three vehicles involved in the incident testified that she discovered approximately eighteen gunshots directed at the silver Ford truck.  The majority of these gunshots were directed at the driver’s side and the rear tailgate area of the vehicle.  The evidence suggested that no one was shooting from inside the silver truck.  She examined the green Chevy truck and noted that the front windshield appeared to have been replaced recently.  She testified that there was no evidence of gunshots entering this vehicle; instead, there was evidence of gunshots exiting the vehicle.  Regarding the white Chevy truck, this witness testified that she discovered a bullet lodged inside the door, but this bullet did not enter the cab of the vehicle.  Finally, she and another crime scene investigator recovered several finger and palm prints from inside the vehicles, but the HPD latent print examiner was unable to identify any of these prints as belonging either to appellant or anyone else.

A firearm examiner from the HPD crime laboratory firearms section testified regarding the bullets and fragments that the crime scene investigators had recovered from the vehicles and the scenes both on the Bissonnet exit ramp and at the intersection where the incident culminated in the decedent’s death.  He explained that he identified shell casings from a 9-mm Luger and two separate .45-mm automatic firearms.  According to this expert, at least three, and possibly four, guns were used in the shootout.  The decedent found in the back of the silver truck was killed by one of the .45 firearms, while the decedent found in the intersection was killed by a different .45 firearm.  He further testified that the identifiable bullets and fragments recovered from the silver truck were shot from one of the .45 firearms and the 9-mm Luger firearm. 

Additional witnesses testified: the on-scene HPD crime scene investigator, the HPD homicide detective in charge of this case, the HPD homicide officer who took appellant’s statement, the individual who rented the silver truck, and the two Harris County medical examiners who performed the autopsies on the two decedents.  After hearing the testimony and argument of counsel, the jury found appellant guilty of capital murder as charged in the indictment.  The trial court sentenced appellant to life in prison.  This appeal timely followed.

ANALYSIS

A.        Sufficiency of the Evidence

In his first two issues, appellant argues the evidence is legally and factually insufficient to support his conviction.  While this appeal was pending, the Court of Criminal Appeals held that only the legal sufficiency standard should be used to evaluate the sufficiency of the evidence in a criminal case.  Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010) (plurality opinion); id. at 926 (Cochran, J., concurring).  Accordingly, we review the sufficiency of the evidence in this case under a rigorous and proper application of the Jackson v. Virginia[2] legal sufficiency standard.  Brooks, 323 S.W.3d at 906.

In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether a rational fact-finder could have found the defendant guilty of all the elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Williams v. State, 270 S.W.3d 140, 142 (Tex. Crim. App. 2008).  We must give deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.  Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).  Thus, we defer to the fact finder’s resolution of conflicting evidence unless the resolution is not rational.  See Brooks, 323 S.W.3d at 906–07.  

Here, appellant admits that he “and his crew” attempted to intercept a vehicle manned by “coyotes (human traffickers) who were transporting a dozen or so illegal aliens through Houston on a busy freeway in broad daylight.”  He further acknowledges that the evidence is sufficient to establish that he is guilty of the murder of Mejia, either as the primary actor or as a party.  However, he asserts that there is no evidence of his kidnapping or attempting to kidnap Mejia.  We thus confine our review to whether there was legally sufficient evidence to establish that appellant, either as a principal or a party, was in the course of kidnapping or attempting to kidnap Mejia when Mejia was murdered.  Appellant’s argument hinges on his claim that “it is unknown whether [Mejia] was one of the illegal aliens targeted by appellant, one of the coyotes, or just an innocent bystander.”  

A person commits the offense of kidnapping if he intentionally or knowingly abducts another person.  Tex. Penal Code Ann. § 20.03(a) (West 2003).  A person attempts to commit kidnapping if he specifically intends to kidnap a person and performs an act amounting to more than mere preparation that tends but fails to effect the commission of the intended kidnapping.  See id. § 15.01(a) (West 2003) (defining “criminal attempt”).  “Abduct” means restraining another person with intent to prevent his liberation by, among other things, using or threatening to use deadly force.  Id. § 20.01(2) (West Supp. 2009).  “Restrain” means restricting a person’s movements without consent to substantially interfere with the person’s liberty by moving the person from one place to another or by confining the person.  Id. § 20.01(1).  Restraint is without consent if it is accomplished, as is relevant here, by force or intimidation.  Id.  There is no specific time requirement for determining whether a person has been restrained. Hines v. State, 75 S.W.3d 444, 447–48 (Tex. Crim. App. 2002).  “It is up to the jury to distinguish between those situations in which a substantial interference with the victim’s liberty has taken place and those situations in which a slight interference has taken place.”  Id. at 448. 

The red-light camera video clearly shows that Mejia was not an “innocent bystander.”  The intersection was very active with many cars driving through it; no one was standing in the middle of the busy intersection when this incident occurred.  In fact, based on the video, the only place Mejia possibly could have come from is either the silver or the white truck.  Because appellant stated that he and his friend Gustavo were the only people in the white truck, the jury may have rationally inferred that the decedent had to have been in the silver truck.  See Brooks, 323 S.W.3d at 906–07.  Thus, the jury reasonably could have determined that Mejia was one of the illegal aliens appellant and his crew were attempting to “steal,” i.e., kidnap, or one of the human traffickers. 

Viewed in the light favorable to the verdict, the evidence shows that appellant and his cohort, both armed with guns, approached the vehicle in which the decedent was riding after it had been forcibly stopped on the Bissonnet exit ramp of Highway 59 North.  The silver truck managed to escape from appellant and his crew, only to be again trapped and shot at by them in the intersection of the Service Road and Bissonnet.  Whether the decedent was one of the traffickers or one of the illegal aliens, a rational juror, based on this evidence, could have determined that appellant, as a principal or party, was attempting to or was substantially interfering with the decedent’s liberty when he was murdered.  See id.; see also Hines, 75 S.W.3d at 447–48.  We thus conclude that there is sufficient evidence to support the jury’s verdict that appellant, as a principal or party, murdered the decedent while in the course of kidnapping or attempting to kidnap him.[3]  We overrule appellant’s issues challenging the sufficiency of the evidence.

B.        Charge Error

In his third issue, appellant argues that the trial court reversibly erred in instructing the jury on the law of transferred intent.  Appellant specifically argues that (a) transferred intent was not raised by the evidence because there was no evidence or testimony that the shooter intended to kill anyone other than the decedent and (b) the transferred-intent application paragraph omitted a key element—that Mejia was the intended kidnap victim.  A claim of jury-charge error is governed by the procedures set forth in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).  We must first determine whether the trial court erred in its submission of the charge.  Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009).  If error exists and appellant properly objected at trial, reversal is required if “some harm” resulted, i.e., if the error was “calculated to injure the rights of the defendant.”  Id. (quoting Almanza, 686 S.W.2d at 171).  If appellant failed to object, error must be “fundamental,” and reversal will result only if the error was so egregious and created such harm that the defendant “has not had a fair and impartial trial.”  Id. (quoting Almanza, 686 S.W.2d at 171).

Here, the trial court provided the following transferred-intent instruction and application paragraph in its charge to the jury:

A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:

(1)  A different offense was committed; or

(1)  [sic] A different person or property was injured, harmed, or otherwise affected.

Now, if you believe from the evidence beyond a reasonable doubt that . . . [appellant] acting alone or with Brujo and/or Primo also known as Cousin and/or Gustavo and/or an unknown person as a party to the offense . . . did then and there, while in the course of committing or attempting to commit the offense of kidnapping, unlawfully and intentionally shoot a firearm at Salvador Ayala and/or Victor Gonzales and/or Jose Guidos and/or an unknown person, intending that death would occur to Salvador Ayala and/or Victor Gonzalez and/or Jose Guidos and/or an unknown person, but instead missed Salvador Ayala and/or Victor Gonzalez and/or Jose Guidos and/or an unknown person and hit Moises Mejia, causing the death of Moises Mejia with the use of a deadly weapon, namely a firearm, then you will find the defendant guilty of capital murder, as charged in the indictment.

On appeal, appellant asserts that there was no evidence that anyone other than Mejia was the target of the shooter.  He points to testimony from one of the investigating officers who stated that Mejia was shot in the head from around thirty feet away.  Thus, appellant contends, it was evident that Mejia was the target of the shooter, and the transferred intent instruction was erroneous.  We disagree.  As described above, this incident occurred quickly, with multiple gunshots fired in a short amount of time.  No one was able to determine who shot Mejia.  Further, based on the evidence and testimony, it is unclear which individual was the target of the gunfire; it is clear only that the shots were intentionally fired at the occupants of the silver truck. 

Because any of the occupants of the vehicle could have been the intended victim of this offense, the trial court properly instructed the jury on the law of transferred intent.  See Tex. Penal Code Ann. § 6.04(b)(2) (West 2009) (defining law of transferred intent as injury, harm, or other effect to a different person or property); see also Sholars v. State, 312 S.W.3d 694, 703–04 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (applying law of transferred intent in a capital murder case).  Further, the application paragraph required that the shooter specifically intended to kill one of the named individuals; thus the jury was not authorized to convict appellant unless it found that appellant, as a principal or party, specifically intended to kill one of the occupants of the silver truck.[4]  We thus overrule the first portion of this issue relating to whether the trial court erred in including the law of transferred intent in the jury charge.

Appellant next asserts that the application paragraph erroneously omits the required element that the decedent, Mejia, was the intended kidnap victim.  However, as noted above, capital murder as charged here does not require that the intended victim of the kidnapping or attempted kidnapping be the same person who was murdered.  See Tex. Penal Code Ann. § 19.03(a)(2) (West Supp. 2009).  Further, because the name of the victim is not an element of kidnapping,[5] the absence of the victim’s name in the jury charge was not error.  Cf. Fuller v. State, 73 S.W.3d 250, 250–51 (Tex. Crim. App. 2002) (noting that offense of injury to an elderly person does not include the victim’s name as a substantive element of the offense). 

Finally, we note that appellant did not object to the court’s charge on this basis.  Accordingly, we would reverse only if the error was so egregious and created such harm that the defendant “has not had a fair and impartial trial.”  Barrios, 283 S.W.3d at 350.  As discussed above, the State presented substantial evidence of this offense, including a live video that captured the events surrounding the murder.  Additionally, appellant admitted his involvement with the scheme to kidnap the individuals in the silver truck and confessed his awareness that firearms would be used in the commission of the offense.  After examining the entire record, even if omitting Mejia’s name from this portion of the jury charge were error, we simply cannot say that it rose to the level of preventing the defendant from having a fair and impartial trial.  We thus overrule appellant’s third issue.

For the foregoing reasons, we affirm the trial court’s judgment.

                                                                        /s/        Adele Hedges

                                                                                    Chief Justice

Panel consists of Chief Justice Hedges and Justice Jamison and Senior Justice Mirabal.*

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] This vehicle was described as either silver or gray by various witnesses.  For the sake of clarity, we refer to it throughout this opinion as silver.

[2] 443 U.S. 307, 319 (1979).

[3] Moreover, to commit capital murder as is alleged here, the defendant need only commit murder in the course of kidnapping or attempted kidnapping.  See Tex. Penal Code Ann. § 19.03(a)(2).  Nothing in the statute requires that the intended victim of the kidnapping or attempted kidnapping must also be the murder victim. 

[4] See Tex. Penal Code Ann. § 19.03(a)(2) (requiring that the defendant intentionally commit murder in the course of committing or attempting to commit, as is relevant here, kidnapping). 

[5] See id. § 20.03(a). 

* Senior Justice Margaret Garner Mirabal sitting by assignment.