Marvin Ariel Pagoada v. State ( 2013 )

Opinion issued May 16, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00444-CR
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MARVIN ARIEL PAGOADA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Case No. 1230825
MEMORANDUM OPINION
A jury convicted appellant Marvin Ariel Pagoada of capital murder for his
role as a co-conspirator in a robbery that resulted in murder. See TEX. PENAL CODE
ANN. § 7.02 (West 2011). Pagoada contends that extraneous-offense evidence was
improperly admitted and that the evidence was legally insufficient to prove that he
should have anticipated the murder. We affirm.
Background
Pagoada participated with the same group of men in two robberies, both of
which led to violent shootings. In the first episode, Pagoada went in a car with
four others to rob a man. The group parked outside a bar called Salina’s Ballroom,
and they waited for their target to come outside. As soon as he appeared, Pagoada
and two other men got out of the car. The two others, known as Tomate and Gera,
ran ahead and began struggling with the victim while Pagoada waited by the car.
The victim tried to take Gera’s gun, and during the course of the fight Tomate
grabbed the weapon and shot him in the head. The group drove away without
taking any money from the victim, who ultimately survived.
Two days later, Tomate invited Pagoada to participate in another robbery.
Tomate had learned about a planned drug delivery. Pagoada joined on the
understanding that he would receive some of the money. According to Pagoada,
he and Tomate drove to an apartment complex and waited outside in a car while
Gera and some others went up to the apartment where the drug delivery was
supposed to happen.
Inside the apartment, complainant Clarence Howard was waiting to hear
from a cocaine dealer. Howard was accompanied by Nadia Funez and Jose Garcia,
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two intermediaries who had helped to arrange a transaction to purchase buy
$51,000 worth of cocaine. Funez was acquainted with Pagoada, Tomate, and
several of the other men planning to rob Howard.
Three men knocked loudly on the apartment door, shouted “policia, policia,
policia,” and then broke in. The intruders wore hose over their faces to obscure
their identities, and at least two of them had guns. They pushed Funez and Garcia
aside and struggled with Howard, who then ran into the bedroom. The intruders
shot at Howard two or three times, mortally wounding him. The intruders then
fled, grabbing Howard’s duffel bag as they ran off.
The police arrested Pagoada based on a tip they received from Garcia, who
received strange phone calls after his cell phone was stolen during the robbery.
After waiving his Miranda rights, Pagoada told police that he had been involved in
the robbery, Howard’s murder, and the earlier robbery at Salina’s Ballroom with
some of same men. He provided the names of several other suspects involved in
the murder, including Gera, who also admitted to his participation. Ballistics
evidence connected weapons found on members of this group of men with the
crime.
Pagoada was charged with capital murder. After a jury trial, he was
convicted of capital murder as co-conspirator and sentenced to life in prison
without parole.
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Analysis
I. Extraneous offense evidence
In his first issue, Pagoada argues that the trial court abused its discretion by
admitting evidence of his involvement in the Salina’s Ballroom robbery. See TEX.
R. EVID. 404(b). He contends that this extraneous offense evidence was not
probative as to whether he should have anticipated that a murder could occur in the
course of the subsequent robbery. Alternatively, he suggests that even if the
evidence of the earlier offense had probative value, it was substantially outweighed
by the danger of unfair prejudice. See TEX. R. EVID. 403.
We review the trial court’s admission of extraneous offense evidence for
abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App.
2009); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). A trial
court abuses its discretion only when its ruling lies outside the “zone of reasonable
disagreement.” Montgomery, 810 S.W.2d at 391. A trial court’s ruling admitting
evidence pursuant to Rule 404(b) is generally within this zone if there is evidence
that (1) the extraneous offense is relevant to a material issue not merely involving a
propensity to commit crimes, and (2) “the probative value of [the] evidence is not
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury.” De La Paz, 279 S.W.3d at 344.
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A. Relevance of extraneous offense (Rule 404(b))
Texas Rule of Evidence 404(b) prohibits admitting, before the sentencing
phase of the trial, “evidence of other crimes, wrongs or acts . . . to prove the
character of person in order to show action in conformity therewith.” TEX. R.
EVID. 404(b). But such evidence may be admitted for other purposes, “such a
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake.” Id. Rule 404(b) has been characterized as a “rule of
inclusion rather than exclusion,” meaning that the rule excludes only evidence
offered solely for the purpose of proving bad character. De La Paz, 279 S.W.3d at
343 (quoting United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000)). The
proponent of the uncharged misconduct evidence merely must be able to explain
the logical and legal rationales that support admission on a basis other than bad
character or propensity purposes. Id. The proponent need not stretch or fit the
facts into falling into one of the exceptions expressly identified in the rule (proof of
motive, opportunity, etc.). Id.
Pagoada was charged with capital murder based on his role as a co-
conspirator to a planned burglary. Co-conspirator liability is defined by section
7.02(b) of the Texas Penal Code which provides:
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
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furtherance of the unlawful purpose and was one that should have
been anticipated as a result of the carrying out of the conspiracy.
TEX. PENAL CODE ANN. § 7.02(b). To show that the murder was committed in
furtherance of the conspiracy, the State presented evidence that Pagoada was part
of the conspiracy to rob Howard and that the murder occurred in the course of the
robbery. To show that the murder should have been anticipated, the State offered
the extraneous offense evidence of the Salina’s Ballroom robbery, where Tomate,
whom Pagoada admitted was also involved in the later Howard murder, shot the
victim.
Given that his co-conspirator shot the victim in the course of the prior
robbery, the extraneous offense evidence supports the State’s theory that Pagoada
reasonably should have anticipated that these same co-conspirators, or others,
might shoot and kill someone in their next robbery. Less direct evidence has been
found relevant to what the accused should have reasonably anticipated under
section 7.02(b). See Love v. State, 199 S.W.3d 447, 453 (Tex. App.—Houston [1st
Dist.] 2006, pet. ref’d) (holding defendant’s admission that he knew co-
conspirators likely carried guns sufficient to show he should have anticipated that
they might shot their robbery victim); Thompson v. State, 54 S.W.3d 88, 96-97
(Tex. App.—Tyler 2001, pet. ref’d) (evidence of defendant’s participation in a
violent gang was sufficiently relevant to address the issue of whether he should
have anticipated one of those gang members would murder); see also Coleman v.
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State, 956 S.W.2d 98, 102 (Tex. App.—Tyler 1997, pet. ref’d) (defendant’s
knowledge co-criminals were bringing guns along sufficient to show the defendant
should have anticipated murder might result in carjacking attempt).
The bar to the admission of extraneous offense evidence has never been set
as high as Pagoada suggests, requiring that the evidence shows that a particular co-
criminal had murderous past conduct. Thus, the trial court did not abuse its
discretion by admitting the Salina’s Ballroom evidence as relevant to Pagoada’s
knowledge.
B. Unfair prejudice (Rule 403)
Even if evidence is offered for a permissible purpose under Rule 404(b), the
trial court may exclude such evidence if the probative value is substantially
outweighed by the danger of unfair prejudice. TEX. R. EVID. 403; Dennis, 178
S.W.3d at 180. All incriminating evidence is in some sense prejudicial; unfairly
prejudicial evidence is evidence having an undue tendency to suggest that a
decision be made on an improper basis, commonly, though not necessarily, an
emotional one. Montgomery, 810 S.W.2d at 389 (quoting Advisory Committee’s
Note to FED. R. EVID. 403). Rule 403 nevertheless favors the admissibility of
relevant evidence. Id. Once the trial court has determined that the proffered
evidence has relevance apart from showing conformity with a certain character
trait, the evidence should be admitted. Id.
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The extraneous offense evidence was directly relevant to an essential
element of the charged crime, namely that Pagoada should have anticipated his
companions’ violent methods during a robbery and not merely that they committed
robberies. See Love, 199 S.W.3d at 453; Coleman, 956 S.W.2d at 102. In addition
to this relevance, the evidence was not needlessly duplicative as there was little
other evidence that Pagoada knew his companions would use violence or carried
guns. The trial court also limited mention of any other extraneous offenses to the
single, most probative incident.
Pagoada asserts that the extraneous offense evidence had little probative
value because, according to his version of events, different people went into the
apartment than had been violent at Salina’s Ballroom. But Pagoada’s story
contradicts this claim. Pagoada admitted that Gera, who had brought a gun to rob
the victim at Salina’s Ballroom, was one of the men who went into the apartment
to rob Howard. Tomate and Gera, who attacked the victim at Salina’s Ballroom,
accompanied Pagoada at both robberies. Accordingly, we conclude that the
Salina’s Ballroom evidence was highly probative of what Pagoada should have
anticipated in the later robbery.
We hold that the trial court did not abuse its discretion by determining that
the probative value of the evidence of Pagoada’s involvement in the Salina’s
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Ballroom robbery was not substantially outweighed by the danger of unfair
prejudice. We overrule appellant’s first issue.
II. Sufficiency of the evidence
In his second issue, Pagoada argues that the evidence shows only that he was
the driver and that he stayed in the car while Howard was robbed and murdered.
He thus contends that the State did not present sufficient evidence that he should
have anticipated Howard’s murder in the course of the apartment robbery.
In reviewing the legal sufficiency of the evidence to support a criminal
conviction, we will determine “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). As the exclusive judge of the
facts, the jury may believe or disbelieve all or any part of a witness’s testimony.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We presume
that the fact finder resolved any conflicting inferences in favor of the verdict, and
we defer to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793;
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). On appeal we may
not re-evaluate the weight and credibility of the record evidence and thereby
substitute our own judgment for that of the fact finder. Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007). In reviewing the evidence,
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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.
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
To sustain a capital murder conviction under section 7.02(b), the State was
obligated to present evidence that Pagoada should have anticipated that murder
might result from the conspiracy to rob Howard. See TEX. PENAL CODE ANN.
§ 7.02(b); see also Longoria v. State, 154 S.W.3d 747, 754, 756 (Tex. App.—
Houston [1st Dist.] 2004, pet. ref’d).
In this case, the State introduced evidence that Pagoada knew that his
companions shot a man when they committed a prior robbery he participated in
and that they carried guns on their robberies. This evidence supports the State’s
theory that Pagoada should have anticipated that someone could be killed when he
accompanied Tomate and Gera for the second robbery. Pagoada argues this does
not prove what he should have anticipated because at the later robbery he stayed
behind in the parking lot with Tomate, who was the conspirator who shot the
victim at the first robbery.
Pagoada admitted that Gera brought a gun to the Salina’s Ballroom robbery
and that Gera went into the apartment to rob Howard. This evidence alone could
support the conclusion that he should have anticipated that someone might be
killed. Further, Pagoada knew from the Salina’s Ballroom incident that Gera and
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Tomate used violence to rob their victims. This also supports the jury’s
determination that Pagoada should have anticipated that murder could result in the
apartment robbery in which he agreed to participate.
Far less direct evidence has been held legally sufficient to show that a
defendant should have anticipated a resulting murder. In Love v. State, 199
S.W.3d 447 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d), this court found that
a defendant’s prior statement to others that his co-conspirators carried guns during
robberies was sufficient to show that he should have anticipated murder might
result. 199 S.W.3d at 453–54. In Thompson v. State, the Tyler Court of Appeals
held that a defendant’s association with a violent gang was sufficient to show a
gang-member’s robbery might result in murder. 54 S.W.3d at 95–97; see also
Coleman, 956 S.W.2d at 102 (knowledge that companions had guns in the car
when they went to steal a Mercedes sufficient to show defendant should have
anticipated resulting murder).
Accordingly, viewing the evidence in the light most favorable to the verdict,
we hold that a rational juror could have found beyond a reasonable doubt that
Pagoada should have anticipated that a murder could occur in furtherance of the
conspiracy to commit robbery. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
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Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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