Margil Tayde Ochoa v. State ( 2008 )

Affirmed and Memorandum Opinion filed May 29, 2008

Affirmed and Memorandum Opinion filed May 29, 2008.

In The

Fourteenth Court of Appeals

_______________

NO. 14-06-00857-CR

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MARGIL TAYDE OCHOA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1034793

M E M O R A N D U M   O P I N I O N

In this appeal, Margil Tayde Ochoa challenges the legal and factual sufficiency of the evidence to support his capital murder conviction.  Because we conclude the evidence is both legally and factually sufficient, we affirm.

I.  Factual and Procedural Background

On the afternoon of July 12, 2005, Gina Vasquez and the decedent, Guadalupe Barboza, left their residence in Northwest Houston to go shopping.  After they returned home several hours later, they unknowingly interrupted a burglary.  Vasquez saw a masked person holding a gun step from behind a wall and point the gun at the decedent.  She fled the house, eventually calling 911 to report the incident.

Harris County Sheriff=s Department (AHCSD@) deputies responded to the 911 call and arrived at the house.  After entering through an open back door, the deputies discovered the decedent lying in the hallway off the den, with pillows covering his back.  He had been shot twice in the back; his hands were bound behind his back with duct tape, and his eyes were covered with duct tape. 

Through the course of investigating the offense, HCSD officers identified appellant and a friend of his, Abelino Monge, as Apersons of interest.@  Both Monge and appellant agreed to come into the sheriff=s department for questioning.  After making an official statement admitting his involvement in the offense, appellant was arrested and indicted for capital murder.  Appellant=s jury trial began on September 18, 2006. 

A.        The State=s Witnesses

Gina Vasquez, the decedent=s girlfriend, stated that the decedent owned a landscaping company and also sold large amounts of drugs.  On July 12, 2005, when she and the decedent returned from shopping, she began putting groceries away while the decedent brought the bags in from their vehicle.  After bringing in the bags and taking out some trash, the decedent walked into the den.  Vasquez stated that she saw a person who was  Acovered up@ step from behind a wall carrying a gun, which this person pointed at the decedent.  She ran out of the house through the garage to their landlord=s house down the street.  Because no one answered when she pounded on the door,  she became scared that someone might chase after her and hid in the dirt near the house. 

While she was hiding, she saw a truck pull up to the decedent=s house; a man she did not know got out of the truck and knocked on the door.  She testified that she did not approach this man because she did not know if he was involved with the gunman she had seen at her home.  She saw this man leave after a few minutes, and then proceeded next door to find help.  Because no one was home at the next house, she went back to the home next door to the decedent=s house.  She never saw anyone leave the decedent=s house.  According to Vasquez, she then called 911.  But on cross‑examination, she admitted that she called a friend of the decedent=s before calling 911 because she was aware of the drugs in the house and was concerned she might get the decedent in trouble by calling the police.^[1]  

Deputy Dellance Davis, an HCSD patrol officer, testified that he was dispatched to a possible Ahome invasion in progress@ at the decedent=s house at around 5:00 p.m. on July 12.  When he arrived at the house, he and two other responding deputies found the back door open.  According to Davis, the deputies did not hear anything from inside the house, so they entered through the back door of the house with weapons drawn.  Davis noticed the decedent on the floor in the hallway with pillows over him.  Another deputy checked the decedent for signs of life, while Davis and the third deputy checked to see if anyone else was in the house. After verifying that no one else was there, the deputies secured the scene.

Gary Clayton, HCSD crime scene investigator, testified that he processed the scene at the decedent=s house.  Clayton described the layout of the house and provided photographs and diagrams of the layout.  According to Clayton, the decedent was found in the hallway near the den of the house, with his feet and lower body angled into the entrance of the master bedroom.  The decedent had duct tape over his eyes and his hands were duct taped behind his back.  He had two pillows over the upper portion of his body; Clayton stated that there was a bullet hole and gun shot residue on the pillows.^[2] Clayton testified that the decedent had a black flex cuff on his leg.  A piece of what appeared to be a blue latex glove was found stuck to the duct tape over the decedent=s eyes.  Clayton also stated that he collected, among other things, a Aprojectile fragment,@ several shell casings, a large quantity of marijuana, and a small bag of cocaine at the scene.  According to Clayton, a latent print was found on the duct tape adhered to the decedent, but the print was not linked to appellant or Monge.

Deputy Bradley S. Bruns from the Harris County Regional Firearms Identification Laboratory explained the differences between a semi‑automatic pistol and a revolver. Because revolvers typically retain the bullet casings and two shell casings were found at the scene, Bruns testified that the murder weapon was a semi‑automatic gun.  He opined that these casings were fired from the same weapon, but no weapon was recovered in this case.  He identified the casings as A.380 auto casings@ and the bullet recovered from the scene as a A.380/.38/.357/9‑millimeter caliber bullet,@ which was consistent with the shell casings.  On cross‑examination, Bruns acknowledged that a gun capable of firing such rounds could be easily concealed.

Detective Mark Reynolds, the lead investigator and a 25‑year veteran with the HCSD, described the course of his investigation into the decedent=s death.  According to Reynolds, he arrived at the scene around 6:45 p.m. on July 12, 2005.  He spoke to Vasquez at the scene and ruled her out as a suspect.  He acknowledged that none of the witnesses were able to identify a suspect; thus, he would be relying on physical evidence to identify any suspects.  He also stated that he suspected that the decedent=s death may have been drug‑related because of the large quantity of marijuana found at the scene.  According to Reynolds, officers found no evidence of forced entry at the house.  In addition, because none of the neighbors saw anyone entering the front of the house, he believed the perpetrators accessed the house from the back. 

The day after the murder, Reynolds returned to the decedent=s house.  He found a cell phone between the backyard of the house and a flood control ditch.  The phone was registered to A.J. Benny=s Landscape and assigned to appellant=s friend, Abelino Monge.  Reynolds determined that Monge had reported the phone missing the day after the murder and had gotten off work early on July 12.  Reynolds stated that HCSD then made contact with Monge and asked him to come in for questioning about his cell phone.  Monge came in later that day; during questioning of Monge, appellant=s phone number was identified and Reynolds determined that he needed to question appellant.  Reynolds indicated that appellant agreed to come in and answer questions: A[Appellant] came down voluntarily. It was reiterated that this was a voluntary interview, that we were investigating a criminal episode.@  Reynolds explained that after several hours of questioning, appellant provided a written statement. Appellant=s statement was admitted into evidence and read to the jury.

According to appellant=s statement, he initially was Adishonest@ with detectives about how he knew Monge and the decedent and his relationship with them.  He stated that he has known Monge since they were children; he indicated he met the decedent through Monge.  He also stated that it was Acommon knowledge@ that the decedent sold drugs and usually had Aa lot@ of cash at his house.  Appellant stated that Monge had begun talking about robbing the decedent for several months prior to the break-in and had become more serious about it in the two months before the murder  

Appellant stated that on July 12, 2005, Monge called him in the morning because he was leaving work early and wanted to break into the decedent=s house to steal money.  Although appellant said he initially resisted, he eventually agreed to help Monge with the break-in.  After running several errands, he and Monge drove to the decedent=s neighborhood; appellant dropped Monge off near the bayou and then drove past the decedent=s house.  Appellant stated that Monge had a Acamouflage backpack@ with him and had black cotton gloves and a black Azip‑tie@^[3] sticking out of his back pocket.  When he drove past the decedent=s house, he stated that it appeared the decedent and his girlfriend were about to leave.  He called Monge and told him to wait for a few minutes for the decedent to leave before entering the residence.  He continued past the decedent=s house, turned around, and drove back past it; this time, the decedent=s truck was gone.  At that point, appellant stated he called Monge back and told him appellant and his girlfriend had left, so he should Ago ahead and break in.@  Appellant stated, AThe plan was for [Monge] to go inside [the decedent]=s house through the back, from the bayou that runs behind the house, and I would just look out and warn him if [the decedent] started coming back.@

Appellant went to a near‑by acquaintance=s house to keep a look out.  Monge called him a few minutes later and indicated he was inside the decedent=s house, looking for money. Appellant told Monge he would call him if he saw the decedent returning. According to his statement, however, Monge started calling him and encouraging him to Acome inside@ the decedent=s house to help him look for money. Appellant refused and tried to stall Monge, but Monge called him and told him he had found Asomething big,@ so appellant walked over to the decedent=s house.

Appellant stated that Monge let him in through the back door.  He took off his shoes so he would not leave shoe prints, and suggested to Monge, who was barefoot, that he put something on his feet.  According to appellant, Monge showed him a large brick of marijuana that Monge wanted to steal.  Appellant stated that he and Monge Astarted poking around,@ looking for money.  Appellant wanted to avoid making a Abunch of mess@ because the plan was to take the money without the decedent noticing right away.  According to appellant, he was in a back room when he realized the decedent and his girlfriend, Vasquez, had returned.  He told Monge that they were there and that they needed to Aroll,@ but the decedent and his girlfriend were already coming through the garage and into the kitchen.  Appellant stated that Monge told him to hide; at that time, appellant noticed that Monge was wearing blue gloves and a black ski mask. 

Appellant stated that he hid in the hallway near the back bedroom, waiting for the decedent and his companion to step out of the house so he and Monge could Atake off.@  But they never got a chance to leave because the decedent came into the hallway near appellant.  When the decedent turned around and walked back toward the kitchen, appellant heard him say, AHey, whoa, whoa.@  He then heard Monge telling the decedent to get down and the decedent replying that he was down.  He came out from around the corner and saw the decedent, who had his back to appellant, starting to lay down on the floor.  According to appellant, the decedent had not seen him, and he moved behind the decedent and pinned him to the floor. The decedent neither resisted nor tried to turn around and look at appellant. Appellant stated that although the decedent saw Monge, he did not think the decedent recognized him because Monge was Acovered up.@  Monge ran back towards the garage once the decedent was pinned to the floor by appellant, apparently looking for the decedent=s companion.  Monge told appellant that the woman had run to the neighbor=s house, and kept pacing back and forth from the garage to the living room. 

According to appellant, he signaled Monge to cover the decedent=s eyes so he could not see them; Monge retrieved his backpack and took out some duct tape.^[4] Monge put a piece of duct tape over the decedent=s eyes and taped his hands together behind his back.  Appellant got up, grabbed his shoes, and motioned for Monge to leave.  He went towards the back door, but Monge ran into the back of the house to get the marijuana brick.  At about this time, appellant stated he heard knocking at the door, but he was preparing to run out the back door. Monge yelled at appellant to come back inside, but appellant shook his head Ano.@  On his way out the back door, appellant grabbed a beer bottle because he had seen Monge drinking it and knew it had touched Monge=s mouth.   He Atook off running across the backyard towards the back fence.@  He then heard a A>pop= like a firecracker,@ but continued running towards the fence.  He climbed the fence, and Monge ran into him from behind and knocked him onto the ground on the other side of the fence.  Monge fell over, too, and both he and Monge dropped several items.

They ran towards the bayou; Monge forged his way across the bayou, but appellant fell into the water.  He dropped everything he was carrying in the bayou, and was pulled along the current towards a barricade.  Appellant stated that he saw that Monge had crossed the bayou, but had dropped everything he was carrying, as well as losing his mask and gloves.  Appellant managed to climb out of the bayou and returned to his acquaintance=s house to get his car.  But he no longer had the keys to his car because he had given them to Monge; he had to borrow his acquantaince=s car to go home.

After returning to his house, appellant went to a shooting range with a friend, where he shot his AColt 38 Super@ before returning home and cleaning his pistol.  The next morning, he learned that the decedent was dead.  He went to Monge=s apartment later that day, and Monge told him Aeverything went bad.@  Appellant explained that he asked Monge about the gun and backpack; Monge replied that he had thrown it all away.  Appellant said that Monge never told him he shot the decedent, but Ahe didn=t have to[] because I was there when everything was going down.@

After appellant=s statement was read to the jury, Reynolds continued testifying.  He explained that after taking the statement and questioning appellant, Reynolds returned to the crime scene, where he was able to verify several of appellant=s statements.  For example, appellant indicated during questioning that Monge had entered the decedent=s house through a rear window. Reynolds discovered that a rear window showed signs of having been pried open recently, although the screen had been replaced.  Additionally, Reynolds found a latex glove near where appellant said Monge had discarded several items. Further, the black flex cuff appellant stated he saw in Monge=s back pocket was discovered on the decedent=s body.  Several other aspects of appellant=s story were likewise corroborated by other evidence: Vasquez saw someone knocking at the door while the robbery was on‑going, and she also stated that the decedent said Awhoa, whoa@ when confronted by the armed gunman.

Assistant Harris County Medical Examiner Kathryn Haden‑Pinneri testified regarding the cause of the decedent=s deathCa gun shot wound to the back which caused severe injury to three major blood vessels and the heart.  According to Haden‑Pinneri, the toxicology screen performed on the decedent indicated he had marijuana in his blood.  She also found several additional pieces of blue latex adhered to the duct tape she removed from the decedent=s body.

B.        Witnesses for the Defense

After the State rested,^[5] appellant presented the testimony of three witnesses:  retired U.S. Army Colonel Andrew R. Bland, Jr., appellant=s wife, and appellant.  Bland testified that he had known appellant for several years; appellant had been a cadet in the Junior ROTC program at Sam Houston Senior High School when Bland was a Senior Army Instructor.  According to Bland, appellant had served at least three years in the U.S. Army.  Bland testified that appellant had an Aoutstanding@ reputation as a peaceful and law‑abiding citizen.

Appellant=s wife, Marissa, testified that she and appellant had been married for five years; they had one young son.  She stated that appellant had served in the Army at Guantanamo Bay; he had only recently returned and wanted to spend time with his son.  She acknowledged that she discovered what had happened on July 12 when appellant was arrested.  She further stated that appellant and Monge had been close friends for a long time.

Appellant testified in his defense.  He explained that he gave his statement to police because Ait was the right thing to do.@  He also knew that he would face consequences from his actions on July 12, but he gave the statement anyway.

On cross‑examination, appellant admitted that Monge was Aupset@ with the decedent because he thought the decedent had not paid him enough for some work Monge had done for him. Appellant testified that because the decedent took Monge=s money, Monge felt like he should take the decedent=s money; i.e., he should Agive him a dose of his own medicine.@  According to appellant, after the decedent and Monge Afell out@ over money, he occasionally bought marijuana from the decedent for Monge.  Appellant testified that, the day before the break-in, he made plans to buy special Ahydroponic weed@ from the decedent for Monge, which the decedent could only obtain out of town.  He stated he contacted the decedent the morning of the break-in to find out whether the decedent planned on picking up the Ahydroponic weed@ that day.  He claimed he called the decedent while in the process of burglarizing his house to make sure the decedent was not going to come back any time soon.

According to appellant, breaking into the decedent=s house was a Aspur of the moment@ plan.  He also testified he had never known Monge to have a gun, and he had no idea where Monge had obtained the gun.  He emphasized that he never saw Monge with the gun, even when Monge, according to Vasquez, was pointing the gun at the decedent.  Appellant explained that he did not see the gun because he and the decedent were on the other side of a closed door from Monge when the decedent lowered himself to the ground in response to Monge=s order.^[6]  He further insisted that, when Monge came into the hallway through that closed door, Monge was not holding a gun.  When asked, he responded he had Ano clue@ how the pillows were placed  on the decedent=s head or how the screen was put back on the window that Monge had pried open to gain entry to the house.  He also insisted that he never spoke while in the decedent=s presence; he stated that he used hand signals to communicate with Monge, although Monge verbally responded.  He acknowledged that the decedent would have recognized both him and Monge, as well as their voices. 

According to appellant, Monge caught up with him Aabout 15 seconds@ after appellant ran out of the decdent=s house.  He admitted that, after fleeing the scene, he thought the decedent had died.  He stated that he asked Monge what happened regarding the shot he had heard while running away, but Monge refused to talk about it.  Appellant explained his failure to notify authorities after the murder: AWell, I figured with all the stuff there, they were going to catch us eventually and I might as well enjoy the little time with my family.@  He testified that he went to the shooting range after the events at the decedent=s house because he was nervous and needed Ato blow off some steam.@  He also acknowledged that he should be incarcerated for his involvement with this offense.

C.        Rebuttal

After appellant testified, the defense rested.  The State called Nolan McClay as a rebuttal witness.  McClay testified that he was the person who had knocked on the decedent=s front door while appellant and Monge were inside with the decedent. McClay explained that he was considering hiring the decedent to do some landscape work and had arranged to talk about the work with the decedent that afternoon.  McClay stated that when he approached the decedent=s front door to knock, he heard two voices arguing inside the house, although he initially assumed the voices were the decedent=s and Vasquez=s.  But he testified that the voices Adefinitely could have been two males, could have been a male and a female.@  He speculated that the voices were coming from the hallway near the front door, although he acknowledged they could have been coming from the front bedroom.  According to McClay, he called the decedent several times while he was at his house, but the calls were unanswered.  He went back and forth from the front door to his truck between knocking on the door.  McClay testified that, after knocking on the decedent=s door for a second time, he heard Atwo pops,@ which he thought might have been firecrackers popping, when he was walking back to his truck.  He left after knocking on the door several times.

After hearing the evidence, the jury found appellant guilty of capital murder.  The trial court sentenced him to life in prison.  This appeal timely ensued.

II.  Issues and Analysis

In two issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction as either a party or a conspirator to capital murder.

A.        Sufficiency of the Evidence

When reviewing the legal sufficiency of the evidence, we do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318B19, 99 S. Ct. 2781, 2789 (1979). Rather, we examine all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Id. at 319, 99 S. Ct. at 2789; Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995) (en banc).  Our review of the evidence includes both properly and improperly admitted evidence.  Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).  We consider both direct and circumstantial evidence, and all reasonable inferences that may be drawn therefrom in making our determination. Id.

When reviewing the factual sufficiency of the evidence, on the other hand, we view all the evidence in a neutral light and set aside the verdict Aonly if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (en banc) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (en banc)).  Before we may reverse for factual insufficiency, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  When reviewing the evidence, we must avoid intruding on the factfinder=s role as the sole judge of the weight and credibility of the witness testimony.  Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (en banc). We do not re‑evaluate the credibility of witnesses or the weight of evidence, and we will not substitute our judgment for that of the factfinder.  Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998).

The jury charge in this case authorized conviction for capital murder if appellant (a) shot the decedent;^[7] (b) was a party to Monge=s shooting of the decedent;^[8] or (c) was a conspirator to Monge=s shooting of the decedent.^[9] Because the jury returned a general verdict, we will  uphold the verdict if the evidence is sufficient to support the guilty finding under any theory submitted to the jury.  Hernandez v. State, 171 S.W.3d 347, 353 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (citing Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992) (en banc)).

B.        Evidence of Guilt as a Conspirator

Appellant does not dispute that he entered a conspiracy with Monge to commit the felony offense of burglary or that Monge shot the complainant in furtherance of the burglary.^[10]  Thus, we focus our inquiry on whether the record supports a conclusion that appellant is criminally responsible for Monge=s shooting of the decedent because he should have anticipated the murder as a result of carrying out their burglary conspiracy.  See Tex. Penal Code Ann. ' 7.02(b). 

Appellant asserts there is no evidence that he should have anticipated that murder would result from carrying out the originally conspired burglary because he had no knowledge that his co-conspirator, Monge, was armed.  Cf. Flores v. State, 681 S.W.2d 94, 96 (Tex. App.CHouston [14th Dist.] 1984), aff=d, 690 S.W.2d 281 (Tex. Crim. App. 1985) (concluding evidence was sufficient to support capital murder conviction because appellant conspired to burglarize a home, decedent was shot during the furtherance of the burglary, and appellant knew his co-defendant had a gun and should have anticipated the shooting).  But,

[i]t is reasonable to infer that when a person joins with two other persons and burglarizes a residence in midday, he should anticipate that they might be confronted by the occupant or discovered by an onlooker, and that his co-conspirators might react violently to that confrontation.  It is further probable that the co-conspirator, if not already armed, might arm himself with weapons found in the residence.

Sarver v. State, 24 S.W.3d 448, 452 (Tex. App.CTexarkana 2000, pet. ref=d).  Although the appellant in Sarver was convicted of aggravated assault, this rationale is equally applicable in this case,  if not more so. 

In Sarver, the appellant and his co-conspirators broke into the victim=s house during daylight hours while the homeowner was at work.  Id. at 451.  A neighbor saw the men enter the backyard of the house, became suspicious, got his own gun, and went to the house to investigate.  Id.  While the neighbor was investigating, he was shot by one of the burglars, who used a gun taken from the homeowner=s briefcase found inside the house.  Id. One of the appellant=s co-conspirators then shot the neighbor several more times, took his gun, and all three burglars fled on bicycles.  Id.  The Sixth Court of Appeals concluded that this evidence was both legally and factually sufficient to support the appellant=s conviction as a conspirator to the offense of aggravated robbery.  Id. at 452.

In this case, the evidence is even stronger that appellant should have anticipated that he and Monge might be confronted by the decedent, and that Monge might react violently to that confrontation.  First, as discussed above, appellant initially remained outside the home to act as a lookout and warn Monge if the decedent returned.  Thus, he anticipated the decedent=s return.  And despite his apparent awareness that the decedent might return at any moment, appellant joined Monge inside the house and remained in the house for about an hour and a half. Moreover, appellant knew that Monge brought duct tape and a zip-tie to the burglary, from which a jury could rationally infer that Monge anticipated binding the decedent. 

Second, appellant stated that Monge believed the decedent had underpaid him by $1,200 for work he had done for the decedent.  In fact, appellant stated that Monge was Aupset@ with the decedent and referred to the fact that the two had had a Afalling out@ about the money.  Thus, appellant should have anticipated that Monge, if confronted by the decedent, might become violent.^[11] Additionally, appellant stated that he, Monge, and the decedent all knew each other quite well; thus, he should have anticipated that, if confronted by the decedent, the decedent would be able to identify them.  Nevertheless, appellant did not wear a mask or otherwise attempt to disguise his appearance, although he insisted that the decedent did not see him and that he did not speak in the decedent=s presence.^[12]

Finally, appellant should have anticipated that Monge, if not already armed, might arm himself with weapons found in the residence.^[13] Indeed, appellant himself suggests that the gun used to kill the decedent may have belonged to the decedent.^[14]  In light of his allegation, he cannot deny that he should have anticipated that the decedent, who was involved in the drug trade and was known to keep large sums of cash at his house, would have weapons in his residence, if not on his person.  See, e.g., Carmouche v. State, 10 S.W.3d 323, 330 (Tex. Crim. App. 2000) (discussing fact that A>weapons and violence are frequently associated with drug transactions=@) (quoting United States v. Brown, 913 F.2d 570, 572 (8th Cir. 1990)).   Thus, he should have anticipated that Monge, if not already armed, could arm himself with weapons found in the decedent=s house.  Sarver, 24 S.W.3d at 452; see also Hernandez v. State, 171 S.W.3d at 355; Moore v. State, 24 S.W.3d 444, 446B47 (Tex. App.CTexarkana 2000, pet. ref=d).

Viewing this evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found that appellant should have anticipated the shooting of the decedent in furtherance of the burglary conspiracy. Because appellant has not challenged the sufficiency of any of the other elements necessary to support his conviction, we conclude the evidence is legally sufficient to support his conviction for capital murder as a conspirator.  We therefore overrule appellant=s first issue.  Furthermore, viewing this evidence in a neutral light, we cannot say that the jury=s verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.   We therefore overrule appellant=s second issue.

III.  Conclusion

Having concluded that the evidence is legally and factually sufficient to support appellant=s conviction of capital murder, we affirm the judgment of the trial court.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed May 29, 2008.

Panel consists of Justices Yates, Guzman, and Lee.^*

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

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^[1]  Vasquez also admitted that the decedent had purchased a large bale of marijuana earlier that day, although she stated that he sent her out of the room so he could buy the drugs.  She further acknowledged that she had about $3,000 in cash on her person on the day of the murder.

^[2]  It is unclear whether there was more than one bullet hole in the pillows over the decedent=s upper body, but the decedent was shot twice in the back.

^[3]  Deputy Clayton and Detective Reynolds described this item as a Ablack flex-cuff.@

^[4]  Appellant indicated in his statement that, earlier in the day while he and Monge were at appellant=s residence, Monge had asked appellant for duct tape.  Appellant stated he told Monge where to find the duct tape, and although he did not see Monge pick up the duct tape, he assumed Monge did so.

^[5]  The State and appellant entered a joint stipulation that appellant was excluded as a possible contributor to DNA evidence collected from the rubber glove found at the scene.  Additionally, with the permission of the trial court and consent of the State, appellant presented the testimony of one of his witnesses before making a motion for instructed verdict.  This motion was overruled.

^[6]    The following exchange occurred during cross examination regarding appellant=s contention that he never saw Monge with a gun:

Q.         [The decedent was g]etting down on the ground?

A.         Yes, ma=am.

Q.         So, what did you do?

A.         I went over to him and placed my hand between his shoulder blades.

Q.         Okay.  And what did Mr. Monge do?

A.         At that point he kicked in through the door. . . .

Q.         He kicked the door in?

A.         It wasn=t closed.  So, he just, like B just, like, kicked it, but nothing shattered or nothing.

Q.         And did he have the gun in his hand then?

A.         No, ma=am.

Q.         Where had he put it?

A.         I couldn=t tell you, ma=am.

Q.         So, your testimony then is that B your testimony then is that B okay.  So, [the decedent]=s running away from Mr. Monge, closes the door behind him, goes into the hallway, thinks he=s away from the man with the gun and just lays down on the ground, right?

A.         He threw the door and lays [sic] down on the ground.

Q.         And laid down on the ground, thinking the door=s going to stop him B the man with the gun from getting to him.  Of course, since B if he=s on the ground, he can=t get up and run.  He=s just a sitting target, right?

A.         Yes, ma=am.

Q.         Now, so, then Mr. Monge is on the other side with the gun, he says, you know, I don=t want [appellant] to see my gun and he just ran away from me; so, I=m going to hide it and I=m going to kick the door and go in without a gun.

Is that your testimony?

. . .

A.         No, it is not ma=am.

Q.         When he came into the hallway, he didn=t have a gun in his hand?

A.         No, he didn=t, ma=am.

Q.         And you noticed that?

A.         Yes, I B

Q.         You looked for it?

A.         Yes, I did, ma=am.

^[7]  The State acknowledges there is no evidence that appellant shot the decedent.

^[8]  A person is criminally responsible as a party to an offense committed by another person if, Aacting 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. . . .@  Tex. Penal Code Ann. ' 7.02(a)(2) (Vernon 2003).

^[9]           If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Id. ' 7.02(b).

^[10]  In his appellate brief, appellant states that he

did not contest at trial, and does not now, that the evidence was sufficient to prove he and Abelino Monge conspired to commit the offense of burglary of the complainant=s home and that Monge committed the separate felony of murdering the complainant.  There was likewise no evidence contesting the State=s contention that Monge shot the complainant in furtherance of the burglary, although how the shooting furthered the stated aim of obtaining money remains unclear.  The relevant inquiry, therefore, is whether [a]ppellant should have anticipated that Monge would murder the complainant as a result of them carrying out the conspiracy of burglary.

^[11]  See Herrin v. State, 125 S.W.3d 436, 442 (Tex. Crim. App. 2002) (noting that the fact that a victim owed money to his killer provided a motive for murder); see also Beets v. State, 767 S.W.2d 711, 735 (Tex. Crim. App. 1987) (en banc).

^[12]  Appellant=s testimony that he did not speak in the decedent=s presence was contradicted by the rebuttal testimony of McClay, who insisted that he definitely heard two voices arguing inside the residence shortly before the decedent was shot.  See Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998) (en banc) (A[A] jury is permitted to believe or disbelieve any part of a witness=[s] tesimony, including a defendant.@). And avoiding identification can be a motive for murder.  See Beets, 767 S.W.2d at 735B36 (noting that, in a prior case, the Court concluded Athe purpose of the killing was to avoid identification@); Hernandez v. State, 171 S.W.3d 347, 354 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (A[A]ppellant told him that, because appellant knew the [victim], appellant would have to kill him.@).

^[13]  The jury was entitled to disbelieve appellant=s self-serving statements that he never saw Monge with a gun.  Bustamante v. State, 106 S.W.3d 738, 741 (Tex. Crim. App. 2003).

^[14]  Appellant states in his brief,

Appellant=s suggestion that the gun might have belonged to the complainant himself is entirely plausible, and the State offered no evidence to controvert it.  The complainant was a drug dealer handling large amounts of dope worth incredible amounts of money . . . .

^* Senior Justice Norman Lee sitting by assignment.