Enrique Cavazos v. State

NUMBER 13-04-00325-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ENRIQUE CAVAZOS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 332nd District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Vela Memorandum Opinion by Chief Justice Valdez

A jury convicted appellant, Enrique Cavazos, of four counts of aggravated robbery and one count of evading arrest. See Tex. Penal Code Ann. §§ 29.03, 38.04 (Vernon 2003 & Supp. 2006). The jury assessed punishment at thirty years in prison on each count of aggravated robbery and two years in a state jail facility on the evading arrest count. In six issues, appellant asserts (1) that he was provided ineffective assistance of counsel; (2) the evidence is legally and factually insufficient to support his conviction; (3) the trial court erred in overruling his objection to the State's improper closing argument; (4) the trial court erred in submitting the case to the jury without requiring the jury to agree on which of six alternative acts was applicable to appellant; (5) the trial court erred in including in the jury charge six alternative acts when the evidence was insufficient to support five of the six acts; and (6) he was denied a fair and impartial trial and due process of law. We affirm.

I. Background

The evidence showed the following sequence of events: four men entered a home in Alamo, Texas on March 4, 2004. The home was occupied by Angelica Durante (homeowner); Jaime Durante; Javier Durante, and Gloria Longoria.

Angelica Duarate, testified that she was watching television in her bedroom with her seven-year-old daughter S.D. She heard a noise, went to the living room, and then saw that "some men" were forcing her brother, Jaime Durante, to the ground with his arms behind his back. She did not recognize any of the intruders. Angelica further testified that one of the men then placed a gun to her head and forced her to lie face down on her bed. She further stated that the men asked for her purse and began looking through her closet. She added that she had just cashed her income tax refund check and thus had approximately $1,300.00 in her purse. After the intruders left, Angelica went to the front door and saw that they were fleeing in a red pickup truck. Angelica then called the police.

Jaime Durante testified that he was sleeping on the living room sofa when he heard a knock at the door. He looked out the front window and saw a man hitting the door with his shoulder and leg. After the door was forced open, Jaime testified that a man held a "short" gun to the back of his head and put his arm behind his back. He was told not to look at them and that if he moved they would "fire." Jaime testified that he did not know any of the men and did not get a good look at their faces. The men took Jaime's wallet and over $200.00 he had in his pocket.

Javier Durante testified that he was asleep in his bedroom when he heard a noise; he walked out of his bedroom into the hallway and, almost immediately, a gun was placed to his head. He was told to lie down on the floor. Javier added that on one occasion he tried to see what was happening, but one of the men put his foot to his head and pushed him back down. Javier testified that he was afraid for his life. Javier's wallet and over $100.00 were taken.

Gloria Longoria testified that she was watching television in her bedroom and her one-year-old son M.L. was sleeping. She stated that she heard a loud bang and then someone kicked her bedroom door open. She added that a man with a cap entered her bedroom and pointed a black gun at her and her baby. She was told to "sit down and stay put." She testified that the man pointed the gun at her for two or three minutes. She stated, however, that she was unable to get a good look at the man. Gloria's purse was also taken.

Alamo police Sergeant Guadalupe Valdez testified that police responded to the 911 dispatch immediately; they found the suspects in the area in a truck matching the description given by one of the victims. Officer Valdez added that the suspects engaged the police in a twelve-mile pursuit, reaching speeds up to 90 miles per hour. The chase ended when the truck crashed into an irrigation ditch. Officer Valdez further testified that a wallet, black purse, an envelope of money, and some caps were recovered from the truck. A blue purse was also recovered from the roadside. Officer Valdez further testified that although the police searched along the route of the pursuit, they were unable to find any weapons.

Officer Valdez also testified about three videotapes that were recovered by cameras in three patrol cars that participated in the pursuit. The record indicates that the jury observed the videotapes while Valdez narrated. Officer Valdez identified appellant as the driver of the truck. The defense rested without calling any witnesses.

II. Ineffective Assistance of Counsel

In his first issue, appellant contends that his retained counsel fell below the standard of effective representation and, therefore, denied him his right to effective assistance of counsel. We disagree.

A. Standard of Review

We review a claim of ineffective assistance by conducting an inquiry as set forth by the United States Supreme Court in Strickland. Appellant must show that counsel's performance was deficient and that this deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Mallet v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001). Judicial scrutiny of counsel's performance must be highly deferential, making every effort to eliminate the distorting effects of hindsight, and indulging a strong presumption that counsel's conduct falls within the wide range of professional assistance. Strickland, 466 U.S. at 695. In order to defeat this strong presumption of reasonable assistance, any allegations of ineffectiveness must be firmly founded in the record. Mallet, 65 S.W.3d at 63. Furthermore, appellant must affirmatively prove that counsel's unprofessional actions or omissions prejudiced the defense and that there is a reasonable probability that, without these errors, a different outcome would have resulted. Strickland, 466 U.S. at 693-94; Mallet, 65 S.W.3d at 62-63.

B. Analysis

Appellant contends that his trial counsel was ineffective because he failed to prepare for trial or provide the most basic defenses to appellant. Specifically, appellant asserts that his counsel was ineffective because he: (1) failed to file or urge pretrial motions; (2) failed to make proper objections and challenges for cause in voir dire; (3) failed to object to the State's allegedly improper opening statement; (4) failed to object to inadmissible evidence during the State's case in chief; (5) failed to request a lesser included instruction in the court's charge; (6) failed to object to the State's improper closing argument; and (7) failed to object to the admission of appellant's prior convictions in the punishment phase of trial.

At the outset, we note that the record is devoid of any explanatory information regarding the actions of appellant's trial counsel. In the absence of a proper evidentiary record, it is extremely difficult to show that trial counsel's performance was deficient and we must presume that his actions were taken as part of a strategic plan for representing his client. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003) (record insufficient to support ineffective assistance of counsel claim where record was silent regarding reasons counsel failed to call expert witness, failed to file pre-trial motions, and failed to adequately prepare witnesses); Mares v. State, 52 S.W.3d 886, 891 (Tex. App.-San Antonio 2001, pet. ref'd).

1. Failure to File Pretrial Motions

Appellant first contends that, "at the minimum, [trial counsel] should have requested a witness list, expert witness designations, criminal records of the witnesses, and requested notice of extraneous offenses." Trial counsel's failure to file pretrial motions is not per se ineffective assistance of counsel. Id.; Bonilla v. State, 740 S.W.2d 583, 586-87 (Tex. App.-Houston [1st Dist.] 1987, pet.ref'd). Unless appellant shows that the pretrial motion had merit and that a ruling on the motion would have changed the outcome of the case, counsel will not be ineffective for failing to assert the motion. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1988) (citing Roberson v. State, 852 S.W.2d 508, 510-12 (Tex. Crim. App. 1993)). Here, appellant has made no such showing in regard to the motions his trial counsel failed to file.

2. Jury Selection/Voir Dire

Appellant next alleges that the trial court's reference to factual allegations of four victims in one transaction constitutes an improper comment on the weight of the evidence to which counsel should have objected. Specifically, appellant contends that the trial court's statements implied to the jury that he personally believed that a crime was committed, that there were four victims, that there were four perpetrators, and that the crime occurred during the same transaction. Appellant cites article 38.05 of the code of criminal procedure, which directs judges to refrain from commenting on the weight of evidence or making any remark calculated to convey to the jury the judge's opinion of the case. Tex. Code. Crim. Proc. Ann. art. 38.05 (Vernon 2006).

It is clear from the record that these comments do not violate this section of the code of criminal procedure, as they do not convey the judge's opinion about the case. Rather, the reason the trial court made its comments and used the examples it did was to ensure the jury would properly consider the full range of punishment if the defendant was convicted. Moreover, appellant has not overcome the presumption that the challenged action might have been sound strategy. Counsel could have determined that any objection would be futile and, given the marginal (if any) impact of the statement, decided not to object. Because there are possible strategic reasons for counsel's conduct, and because the remarks from the bench did not constitute improper comments, the performance of appellant's trial counsel did not fall below the standard of reasonable competency. See Resendez v. State, 160 S.W.3d 181, 190 (Tex. App.-Corpus Christi 2005, no pet.). ⁽¹⁾

Appellant also asserts that counsel should have challenged jurors 20 and 28 for cause. The presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance applies to counsel's decisions regarding which venire members to challenge or strike. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (holding that trial counsel's failure to challenge impartial juror did not constitute ineffective assistance of counsel because record did not indicate why counsel did not strike that venire member); Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992) (same). Here, as in Jackson and Delrio, the record does not demonstrate the alleged ineffectiveness necessary to overcome the presumption of reasonable professional assistance.

3. Opening Statement

Appellant next complains that counsel was ineffective (1) by not objecting to the prosecutor's "numerous improper comments during his opening statement" and (2) by giving an inadequate opening statement. Appellant has not cited a single authority in support of his contentions and has therefore failed to adequately brief these assertions. Tex. R. App. P. 38.1(h).

4. State's Case in Chief

Appellant next contends that his written statement failed to comply with the requirements of article 38.22 of the Texas Code of Criminal Procedure and, thus, trial counsel's failure to object to its admission constituted ineffective assistance. ⁽²⁾ However, appellant's written statement complies with every requirement set forth in article 38.22. Each of the warnings listed in section 2(a) is listed on the face of the appellant's written confession. Officer Vasquez testified that he read appellant each of the warnings, and that he had appellant place his initials by each warning indicating that he understood them. Appellant also signed his name at the bottom of his statement. We conclude that appellant's written statement complies fully with article 38.22. Thus, trial counsel's failure to object does not constitute error. ⁽³⁾

5. Jury Charge

Appellant next contends that trial counsel should have requested a jury charge on the lesser included offense of robbery. Because the record is silent regarding counsel's trial strategy, we must presume that he had a plausible reason for not requesting an instruction on the lesser-included offense of robbery and that he acted within the range of reasonable professional assistance. The failure to request an instruction on a lesser-included offense can be a valid and reasonable trial strategy. See Lynn v. State, 860 S.W.2d 599, 605 (Tex. App.-Corpus Christi 1993, pet. ref'd). The "all or nothing" strategy of forcing the jury to choose between the greater offense and acquittal without the alternative of a lesser-included offense, is risky but sometimes successful. See id. at 603. Because appellant has failed to rebut the strong presumption that counsel's decision not to request the instruction was sound trial strategy, he has not carried his burden under Strickland.

6. State's Closing Argument

Appellant next alleges that trial counsel erred by not objecting to portions of the State's closing argument. Again, appellant has failed to cite to any authority supporting his contentions and has therefore failed to adequately brief these assertions. Tex. R. App. P. 38.1(h).

7. Punishment Phase

Appellant next contends that trial counsel should have objected to the admission of copies of his prior convictions. Appellant asserts that "although the copies are marked 'certified,' they appear to be copies of certified copies of public documents." Appellant concludes that they should not have been admitted. Once again, appellant has failed to cite a single authority supporting his assertion and has therefore failed to properly brief this subissue. Tex. R. App. P. 38.1(h).

Appellant has failed to show, in any of his ineffective-assistance allegations, that counsel's performance was deficient and that this deficient performance prejudiced his defense. See Strickland, 466 U.S. at 692, Mallet, 65 S.W.3d at 62-63. Appellant's first issue is overruled.

III. Legal and Factual Sufficiency

In his second issue, appellant contends that the evidence is legally and factually insufficient to show that he was a party to the aggravated robbery.

A. Standard of Review

A legal sufficiency review requires us to view the evidence in light most favorable to the verdict and determine whether any rationale trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004). In reviewing the evidence for factual sufficiency, we consider all the evidence in a neutral light to determine whether the evidence supporting the verdict is so obviously weak as to undermine confidence in the jury's determination, or whether the evidence of guilt, although adequate if considered alone, is so greatly outweighed by contrary proof that the jury's verdict is not rationally justified. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d 404, 414-15, 417 (Tex. Crim. App. 2006).

B. Law of Parties

In order to convict appellant as a party to aggravated robbery, the State had to prove that he was criminally responsible for the perpetrator's use or exhibition of a firearm during the offense. See Stephens v. State, 717 S.W.2d 338, 340 (Tex. Crim. App. 1986) (holding that, in order to convict defendant as party to aggravated offense, there must be sufficient evidence that defendant was criminally responsible for aggravating element); Wooden v. State, 101 S.W.3d 542, 547-48 (Tex. App.-Forth Worth 2003, pet. ref'd) (same). 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, encourages, directs, aids, or attempts to aid the other person to commit the offense." Tex. Penal Code. Ann. § 7.02(a)(2) (Vernon 2003); Wooden, 101 S.W.3d at 546. In determining whether an accused bears criminal responsibility for an offense, we may look to events before, during, and after the commission of the offense. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987).

A person commits aggravated robbery if (1) in the course of committing a theft, he intentionally or knowingly threatened or placed another in fear of imminent bodily injury or death and used or exhibited a deadly weapon or (2) acted with intent to assist in the commission of the offense while encouraging, aiding, or attempting to aid others in committing the offense. Tex. Penal Code. Ann. §§ 7.02 (a)(2), 29.02, 29.03 (Vernon 2003).

C. Analysis

1. Legal Sufficiency

Appellant first argues that the State did not prove beyond a reasonable doubt that appellant or his co-conspirators used a firearm in the home invasion. To support his contention, appellant cites the following: (1) the police did not recover any firearms in the truck appellant was driving; (2) the victims could not identify that real firearms were used; (3) appellant stated in his statement to the police, that the handgun he used "looked like a BB gun."

A person commits aggravated robbery if, among other possibilities, he or she uses or exhibits a deadly weapon during the course of a robbery. Tex. Penal Code Ann. § 29.03(a) (Vernon 2003). The Texas Penal Code lists two categories of "deadly weapons." Id. § 1.07 (Vernon Supp. 2006); Robertson v. State, 163 S.W.3d 730, 732 (Tex. Crim. App. 2005). The fist category is comprised of those instruments designed to be deadly weapons, including "a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury." Tex. Penal Code Ann. § 1.07(a)(17)(A). The second category is comprised of those instruments whose use transforms them into deadly weapons, including "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Id. § 1.07(a)(17(B). Here, the indictment specifically charged that appellant used and exhibited a firearm while committing robbery. Therefore, the State had the burden to prove beyond a reasonable doubt that appellant in fact used and exhibited a firearm during the robbery. See Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991); Tidwell v. State, 187 S.W.3d 771, 775-76 (Tex. App.-Texarkana 2006, pet. dism'd).

It is true that the term "gun" may be a much broader term than "firearm" and may include such nonlethal instruments as BB guns, blow guns, pop guns, and grease guns, see O'Briant v. State, 556 S.W.2d 333, 336 (Tex. Crim. App. 1977). Courts have also recognized, however, that the fact finder may draw reasonable inferences and make reasonable deduction from the evidence as presented to it within the context of the crime. Goodin v. State, 750 S.W.2d 857, 859 (Tex. App.-Corpus Christi 1988, pet ref'd). Absent any specific indication to the contrary at trial, the jury should be able to make the reasonable inference, from the victim's testimony that the "gun" was used in the commission of a crime, was, in fact, a firearm. See Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1979); Joseph v. State, 681 S.W.2d 738, 739 (Tex. App.-Houston-[14th Dist.] 1984, no pet.) (testimony that defendant used "gun" or "long-barreled gun" was sufficient to establish that he used a firearm).

Here, the record is replete with evidence that firearms were used as alleged in the indictment. Appellant admitted in his statement to police that he carried a handgun, albeit one "that looked like a BB gun." Appellant also admitted that he had gone to the residence to rob the inhabitants. The four adult victims, who were located in different areas of the home, each testified that he or she had been restrained by gunpoint by at least one of the intruders. Jamie Durante testified that the home invader threatened to "fire" at him if he did not stay down. All four victims testified that they were afraid of their lives.

Lastly, regarding appellant's self-serving testimony that the pistol was merely an BB gun, as sole judge of the credibility of the witnesses and the weight to be given their testimony, the jury was free to completely disregard appellant's testimony and assign it no weight. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); McCelvey v. State, 143 S.W.3d 522, 531 (Tex. App.-Austin 2004, pet. ref'd). We find that the evidence was legally sufficient to support the conclusion that a firearms were used and exhibited during the robbery. ⁽⁴⁾

2. Factual Sufficiency

Appellant next asserts that there is factually insufficient evidence that each one of the co-conspirators each threatened or placed in fear of imminent bodily injury or death each of the four victims. He asserts that the evidence shows that "distinct suspects threatened separate victims and that not all three co-conspirators each threatened all four victims." He also asserts that the evidence is insufficient to prove that the named individuals were involved in the robbery.

In his statement, appellant himself specifically placed two of his co-conspirators, Jose Luis Garcia and Armando Salinas, at the home invasion. He also stated that another man was present. Officer Valdez testified that Armando Salinas, Jose Luis Garcia, Alfredo Fonseca and appellant were all apprehended immediately after the police pursuit ended. Thus, the evidence is sufficient to establish the identities of the co-defendants.

Further, appellant misunderstands the law of parties, under which a person may be held criminally responsible for the conduct of another. See Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 2003). The evidence must show that, at the time of the offense, the parties were acting together, each contributing some part toward the execution of their common purpose. See Escobar v. State, 28 S.W.3d 767, 774 (Tex. App.-Corpus Christi 2000, pet. ref'd); Rosillo v. State, 953 S.W.2d 808, 814 (Tex. App.-Corpus Christi 1997, pet. ref'd). Contrary to appellant's assertion, the State was not required to prove that each co-conspirator committed each element of the offense against each victim. See Wooden v. State, 101 S.W.3d 542, 548 (Tex. App.-Fort Worth 2003, pet. ref'd).

Here, we examine the aggravated robbery from beginning to end to assess the participation and contribution from appellant. First, in his statement, appellant acknowledged that he drove to the house in question. He exited the vehicle with a gun in hand, walked up to the door and, after it was kicked open, he entered the home. Appellant's presence and participation thus far shows an understanding and common design to commit this aggravated robbery.

Second, we note that, each of the four adult victims testified that he or she had been restrained at gunpoint by at least one of the intruders. While it is not entirely clear which of the four men took what particular actions, the testimony shows that all men played active roles in the aggravated robbery.

Finally, the record shows that all four men fled the home together, with appellant driving the vehicle. Based on the evidence of events occurring before, during, and after the commission of the aggravated robbery, we conclude the record supports the jury's verdict by providing factually sufficient evidence appellant, acting with intent to promote or assist the commission of the offense, encouraged and aided Armando Salinas, Jose Luis Garcia, and Alfredo Fonseca in the commission of aggravated robbery. See Tex. Penal Code Ann. § 7.02(a)(2). The record demonstrates that all four men were acting in concert, "each contributing some part toward the execution of their common purpose." See Escobar, 28 S.W.3d at 774. We, therefore, conclude the evidence is factually sufficient to support appellant's conviction.

Having found the evidence both legally and factually sufficient, we overrule appellant' second issue.

IV. Improper Jury Argument

In his third issue, appellant contends the State engaged in improper argument at the punishment phase of the trial. Specifically, appellant asserts the State's argument overstepped the boundaries of possible plea for law enforcement and asserted a community expectation.

A. Standard of Review

An assertion of improper jury argument requires us to review the record in its entirety to determine whether any erroneous statements were made, and if so, whether they were so prejudicial as to deprive appellant of a fair and impartial trial. Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989). There are four permissible areas of jury argument: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Wilson v. State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1988); Chavero v. State, 36 S.W.3d 688, 699 (Tex. App.-Corpus Christi, 2001, no pet.). An argument which exceeds these bounds is error, but only becomes subject to reversal if, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial. Felder v. State, 848 S.W.2d 85, 94-5 (Tex. Crim. App. 1992); Everett v. State, 707 S.W.2d 638, 640 (Tex. Crim. App. 1986). To determine if the prosecutor made an improper jury argument, the reviewing court must consider the entire argument in context - not merely isolated instances. See Rodriguez v. State, 90 S.W.3d 340, 364 (Tex. App.-El Paso 2001, pet. ref'd).

B. Analysis

During the State's argument, the following exchange took place:

Right now the interest of the community is focused on this case. You've seen the cameras come in here. They are interested in what happens here because people are interested in what happens to your home. And we all -

[Defense Attorney]: Your honor, I am going to object. Calls for an improper plea for law enforcement.

[The Court]: It's overruled.

A plea for law enforcement is a permissible area of jury argument. See Wilson, 938 S.W.2d at 59; Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). Here, it is clear from context that the State was attempting to convince the jury to act as the voice of the community, which constitutes a plea to law enforcement and does not constitute an improper appeal to community expectations. See Rodriguez, 90 S.W.3d at 365. Furthermore, considering the argument and the record as a whole, we cannot say the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial. See Felder, 848 S.W.2d at 94-6; Everett, 707 S.W.2d at 640. We conclude the State did not commit improper jury argument. See Willis, 785 S.W.2d at 385. We overrule appellants third issue.

V. Unanimity of Jurors

In his fourth issue, appellant argues that the jury instruction failed to require a unanimous verdict in violation of his rights under both the United States and Texas Constitutions and the Texas Penal Code. See U.S. Const. amends. VI, XIV; Tex. Const. art. I, § 19, art. V, § 13; Tex. Penal Code Ann. § 2.01 (Vernon 2003). The jury charge allowed the jury to find appellant guilty of the alleged offense as a principal or under the law of parties. Appellant did not object at trial and alleges on appeal that the charge violated the unanimity requirement because the jury was not required to unanimously agree (1) whether principal or party liability would be the basis for the verdict, or (2) as to which method appellant utilized to commit the offense. Appellant's fifth issue is similar; he asserts that the evidence was insufficient to show that appellant committed five of the six acts alleged in the jury charge.

When defense counsel does not object to a jury charge, error, if any, does not require reversal unless it was so egregious and created such harm that appellant was denied a fair trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). The jury charge in this case was not erroneous. Even though the indictment in this case alleged differing methods of committing the offense in the conjunctive, it is permissible to charge the jury in the disjunctive. Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). When alternative theories of committing the same offense are submitted to the jury in the disjunctive, it is appropriate for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted. Id.; Hanson v. State, 55 S.W.3d 681, 694 (Tex. App.-Austin 2001, pet. ref'd). As discussed earlier, the evidence is legally and factually sufficient to support a conviction under any of the theories submitted to the jury. The unanimity requirement is not violated by instructing the jury on alternative theories of committing the same offense. Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004). Accordingly, we overrule appellant's fourth and fifth issue.

VI. Fair Trial

In his final issue, appellant contends, considering the trial as a whole, he was denied a fair and impartial trial and due process of law. To support his argument, appellant "incorporate[s] by reference" all previously stated issues. Having already overruled issues one through five, we overrule appellant's sixth issue.

VII. Conclusion

The judgment of the trial court is affirmed.   

ROGELIO VALDEZ  

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 30th day of August, 2007.

1. Appellant also complains that trial counsel should have objected to the State's remarks at jury selection. Appellant has not cited a single authority to support his contentions and has therefore failed to brief this subissue. Tex. R. App. P. 38.1(h).

2. Article 38.22, section 2(a), requires the following warnings to be made:

(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as evidence against him in court;

(3) he has the right to have a lawyer present to advise him prior to and during questioning;

(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning;

(5) he has the right to terminate the interview at any time.

Tex. Code Crim. Proc. Ann. art. 38.22, § 2(a) (Vernon 2005).

3. Appellant also asserts that trial counsel erred by not objecting to "inadmissible hearsay." Appellant has not cited a single authority to support his contentions and has therefore failed to brief this subissue. Tex. R. App. P. 38.1(h).

4. Appellant cites to two cases that stand for the proposition that the State has the burden of proving that an alleged deadly weapon was capable of causing death or serious bodily injury in the manner of its use or intended use. See McCain v. State, 22 S.W.3d 497, 502 (Tex. Crim. App 2000); Lee v. State, 51 S.W.3d 365, 371-76 (Tex. App.-Austin 2001, no pet.). However, each case appellant cites involved an instrument in the second category of deadly weapons, i.e., those whose use or intended use converted them into deadly weapons. See Tex. Penal Code Ann § 1.07(a)(17)(B); McCain, 22 S.W.3d at 502 (knife); Lee, 51 S.W.3d at 371-76 (air pistol). Here, appellant was charged with using or exhibiting a firearm, which is the first category of deadly weapons and thus a deadly weapon per se. See Tex. Penal Code Ann. § 1.07(a)(17)(A). Accordingly, the State did not have to prove that the pistols used were capable of causing death or serious bodily injury in the manner of it use or intended use; it only had to prove that the pistols were in fact a firearm. This it did through the four victim's testimony.