AFFIRM; Opinion issued December 12, 2012

In The

Qitnirt iif Apprals

Ftft1i Oiitrict uf 1rxa at DallaEi

No. 05-11-01489-CR

RUDY BONILLA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 292’’ Judicial I)istrict Court

Dallas County, Texas

Trial Court Cause No. Fl 1-00598-V

OPINION

Before Justices Morris, Richter. and Murphy

Opinion By Justice Morris

In this appeal following a conviction for capital murder, Rudy Bonilla challenges the legal

sufficiency ofthe evidence supporting the jury’s finding that he intentionally caused the death ofthe

deceased, Kimheng Lay. In addition, appellant argues the trial court violated the First Amendment

by conducting a closed pre-trial hearing and committed reversible error when it overruled appellants

objection to a portion of the prosecutor’s closing argument. Concluding there is no merit to

appellant’s contentions, we affirm the trial court’s judgment.

FcTuL BAcKGRouND

Kimheng Lay owned a convenience store in northwest Dallas. On the evening of October

11 2009 1 a w is oiking in thc store with his wife s cousin Kimleang Flerndon the activities
in the store that night were recorded by several security cameras. At approximately 10:53 p.m., a

man later identified as appellant entered the store. Appellant walked toward the back ofthe store.

away from the counter where Lay was working. 1 lerndon testified that appellant walked up to her.

held up a gun. and told her to go to the cash registers and “get the money.” Appellant and Herndon

then walked to the counter where Lay was helping a customer named Anthony McCoy.

McCoy testified that appellant and Herndon walked up to the counter and appellant told

McCoy to put up his hands. Appellant then told Lay to open the cash register. As Lay was getting

the money from one ofthe cash registers, appellant stated that it ‘wasn’t enough” and Lay opened

the second cash register near the front door. Lay gave appellant the money and appellant stuffed it

into his pockets. As this was occurring, McCoy’s friend Steven Price walked into the store.

Price testified that as he walked into the store, appellant came out from behind the counter

and began walking toward the front door. While appellant was walking toward the door, Lay pulled

a gun out ofthc waistband of his pants. Lay then pulled the guWs slide back to chamber a round.

pointed the gun at appellant, and shot him in the leg. Price heard appellant say “Aw. hell no,” and

saw him fall to the floor. McCoy heard appellant say “You shot me,” followed by another gunshot

Price and McCoy ran down the aisle behind them and Price testified he heard ‘a whole bunch of

shooting.” Price estimated he heard five or more rounds being fired but he did not know which gun

the shots came from.

One ofthe video recordings from the security cameras shows a view from behind the counter

toward the front door. The recording shows Lay pulling a gun out of his waistband and walking

behind the counter toward the second cash register and the front door. When he reaches the end of

counter, Lay leans over from behind a potted plant and fires the gun at appellant who appears to be

bending over. Appellant then drops out of view on the far side ofthe counter while Lay moves to

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the other side of the plant. A second video recording shows a view from the side ofthe store looking

at the second cash register and the front door. This recording shows Lay firing his gun at appellant

and appellant falling to the ground onto his back in front ofthe door. As appellant gets up from the

floor, his right arm is outstretched toward Lay and a gun can be seen in his right hand. Lay drops

out ofview behind the counter while appellant continues to get up. The recording from behind the

countershows items being blown offthe top ofthe counter in front of Lay as Lay hIts quickly into

a crouching position before rolling backward onto the floor. The second recording then shows

appellant lean forward on the counter, look toward Lay, and move toward the door. Appellant

proceeds to fall through the door and crawl away.

The gun used by appellant on the night ofthe shooting was never recovered. A .45 caliber

pistol was found under Lay’s body and two spent .45 caliber cartridge casings were found in the

store. Reed Quinton, a medical examiner, testified that Lay sustained two gunshot wounds.

According to Quinton, one bullet entered at the inner corner ofLay’s left eye and exited from the

back of his head. The second gunshot wound was on the front of Lay’s right foreann. Quinton

testified it was “highly unlikely” that the same bullet caused both wounds. A bullet wasrecovered

during the autopsy and a firearms expert testifiedthat it was consistentwith a .38 or .357 caliber gun.

Based on information from an informant, Appellant was arrested several days after the

shooting and charged with the offense of capital murder. Specifically, the indictment alleged that

appellant,

did unlawfully then and there intentionally cause the death of

KIMHENG LAY, an individual hereinafter called the deceased, by

SHOOTING ThE DECEASED WITH A FIREARM A DEADLY

WEAPON. and [appellant] was then and there in the course of

committing and attempting to commit the offense ofROBBERY of

said deceased.

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Appellant xvas tried he fore a jury and. after hearina and viewine the evidence, the j urv Idund luin

guilty as charged and sentenced him to life in prison. Appellant now brings this appeal.

Di St USS ON

In his first issue on appeal. appellant contends the evidence is legally insufficient to support

his conviction for the offense of capital murder because the state ftiiled to prove that he intentionally

caused Lay’s death. Appellant argues the evidence shows that Lay’s death was the unintended result

of his being shot by Lay. Appellant suggests that his gun inadvertently discharged eithcrwhile he

was falling after being shot or while he was rolling on the floor.

In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence

to determine whether any rational trier of fact could have found the essential elements ofthe offense

beyond a reasonable doubt. See iodochodskv v. Stale, 158 S.W.3d 502. 509 (Tex. Crirn. App.

2005). We review all the evidence in the light most favorable to the verdict and assume the trier of

fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a

manner that supports the verdict. See Rollerson v. Stale. 227 S.W.3d 718, 724 (Tex. Crim. App.

2007).

intent is most often proven through the circumstantial evidence surrounding the crime. See

Sholars v. S/ate. 312 S.W.3d 694, 703 (Tex. App.——Houston [l Dist.j 2009, pet. rePd). Intent to

kill may be inferred from the use of a deadly weapon unless it would not be reasonable to infer that

death or serious bodily injury could result from the use ofthe weapon. See Ross v. Stale, 861 S.W.2d

870. 873 (Tex. Crim. App. 1992). If a deadly weapon is used in a deadly manner, the inference is

almost conclusive that the defendant intended to kill. See Godsev v. State, 719 S.W.2d 578, 581

(Te. Crim. App. 1986).

In this case. the evidence showed that appellant went into the convenience store carrying a
loaded gun and that he pointed the gun at various people in the store during the course of the

robber. One of the video recordings shows that after appellant was shot, he got up off the ground

\\ith his right arm outstretched, pointing the gun in appellant’s direction. it was as appellant’s arm

was outstretched toward Lay that Lay tell to the ground, having been shot. An autopsy showed that

Lay was shot in both the head as well as the arm and that it was “highly unlikely” that one bullet

caused both injuries. This shows that appellant fired at least two bullets in appellant’s direction.

Based on this evidence. a rational trier of lact could conclude beyond a reasonable doubt that

appellant intended to kill Lay and that Lay’s death was not the result of appellant’s gun inadvertently

discharging. We resolve appellant’s first issue against him.

In his second issue, appellant contends the trial court judge violated the First Amendment

to the United States Constitution when he cleared the courtroom during a pre-trial hearing. The

record shows that during the pre—trial proceedings appellant requested to make a statement on the

record, outside the presence and hearing of others, pertaining to his mental capacity and defense

strategy. The trial judge granted appellant’s request and had all the spectators, with the exception

of appellant’s mother, removed from the courtroom. Appellant now contends that this action

violated the right of’ the public and press to access to criminal trials under the First Amendment.

We first note that appellant is not contending that the trial court’s action violated his Sixth

Amendment right to a public trial. See U.S. C0NsT. amend. VI. Appellant concedes that this

constitutional right may he waived or that he may be estopped from raising the issue on appeal

through the doctrine of “invited error.” See Prvtash v. State. 3 S.W.3d 522. 531 (Tex. Crim. App.

2009) (if party affirmatively seeks an action by trial court. he cannot later contend the action was

error). Rather, appellant brings his challenge solely under the First Amendment right of access to

criminal trials 5cc Globe Newspaper Co v Supei zor (our! for Norfolk €nly, 457 U 5 596 604
I 9t2 ). :\ppel hint asserts that he could not have waived this right because it protects others.

includinu individual citizens and the press. and. therethre. his actions could not forfeit their right to

be present at his trial. I’his areument, however, begs the question ot appellant’s standing to assert

the challenge.

1 or a Iarty’ to challenge an action, it is a fundamental requirement that he have standing to

assert the challenge. See Valley Forge Christian Coil. v. Americans United/or Separation of Church

State, Inc., 454 U.S. 464. 471(1 9X2). The United States Supreme Court has held that “standing”

requires a party to allege (1) a personal injury in fact. (2) a violation of his own rights, not those of

a third party, 3) that the injury falls within the zone of interests protected by the constitutional

guarantee involved, (4) that the injury is traceable to the challenged act, and (5) that the courts can

grant redress br the injury. See id.: see also in re Houston (‘hronicle Puhl g Co.. 64 S.W.3d 1 03.

106 (Tex. App.—Houston [14th Dist.] 2001. no pet.). Accordingly, for appellant to have standing

to assert a First Amendment challenge to the trial court’s action of clearing the courtroom, he must

show that the action injured him personally and constituted a violation of his rights and interests

under the First Amendment.

The rights and interests protected by the First Amendment involve the free discussion of

governmental affairs and the ability ofindividual citizens to effectively participate in and contribute

to our system of government. See Globe Newspaper, 457 U.S. at 604. Appellant has made no

showing that the trial court’s action of clearing the courtroom for a pre-trial hearing caused him any

injury or that it had any effect on his right to discuss. participate in, or contribute to governmental

affairs. We conclude. therefore. that appellant lacks standing to challenge the trial court’s action on

the ground that it violated the First Amendment. We resolve appellant’s second issue against him.

Finally, in his third issue, appellant contends it was reversible error for the trial court to
overrule his objection to a portion of the prosecutors closing argument because the argument

injected a new, harmful fact before the jury that was not a reasonable deduction from the evidence.

The argument about which appellant complainsinvolved the discussionofseveral photographstaken

at the scene of the shooting. In discussing one ofthe still photos taken from the security camera

recordings the prosecutor asked. ‘Can you see all those white particles that have now appeared in

this area, like an explosion, as ifthe evidence would show that a third bullet came through and blew

up those spoons [on the counter’?]” At that point appellant objected stating the argument was outside

the record and that there had been no testimony about a third bullet. The trial court overruled the

objection. The prosecutor then went on to say. It is a reasonable deduction from the evidence.

ladies and gentlemen, that that is a third bullet coming through. blowing up that area ofthe counter.

There’s more particles, and you can follow those particles all the way down to the ground after Mr.

Lay and his injuries are below the counter.” Appellant contends the prosecutor’s suggestion that he

fired a third bullet was harmful because, iftrue. this fact would make it less likely that his gun

discharged inadvertently.

Properjury argument Ihils into one offour categories: (1) summation ofthe evidence, (2)

reasonable deductions from the evidence, (3) answer to the argument of opposing counsel, and (4)

plea forlaw enforcement. See Wesbrook v. SKate, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). The

Texas Court of Criminal Appeals has consistently held that counsel may, in his final argument,

“draw from the facts in evidence all inferences that are reasonable, fair, and legitimate and that he

has wide latitude without limitation in this respect so long as the argument is supported by the

evidence and offered in good faith.” See Vaughn v. State. 607 S.W.2d 914.922—23 (Tex. Crim. App.

[Panel Op.] 1980).

The argument at issue was the prosecutor’s interpretation ofthe photographic evidence that

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was before the jury. ills opinion that appellant fired a third bullet was supported not only by the

photographs. hut also by the liLet that only two cartridge casingsfrom Lays gun were recovered and

Price testified he heard five or more gunshots while he was in the store. Although appellant offers

alternative explanations for what the evidence shows, these alternatives do not render the

prosecutor’s interpretation ofthe evidence unreasonable or suggest that the argument was made in

bad faith. The jurors heard the evidence and viewed the photographs along with the prosecutor and

were (lilly capable of drawing their own conclusions. including ones that were different from the

prosecutor’s. Id. at 923. We conclude, therefore, that the prosecutor’s statements fell within the

permissible scope ofjury argument. We resolve appellant’s third issue against him

We affirm the trial court’sjudgment

MRRlS

Do Not Publish

TEx. it App. P.47

II 1489F.U05

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ittI! th’3trTrt uf 1txt at Ja11zti

JUDGMENT

!J) BONIIIA. Appellant Appeal From the Q2nd Judicial District

Court of Dallas County, Texas. (TrCt.No.

No. 05-11-01-189-CR V. Fl l-00598-V).

Opinion delivered by Justice Morris,

THE STATE OFFEXAS. Appellee Justices Richter and Murphy participating.

Based on the Courts opinion of this date, the judgment of the trial court is AFFiRMED.

Judgment entered December 12, 2012.

JOSjJ4iB.MfRRrs

—-—JUSTlCE