AFFIRM; Opinion issued December 12, 2012

In The 

## Qitnirt iif 

## Apprals Ftft1i 

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## 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 errorwhen 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’sjudgment. 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. heldup agun. and told herto go to the cashregisters and “getthe money.” Appellantand Herndon then walked to the counterwhere Lay was helping acustomernamed 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 nearthe front door. Lay gave appellantthe 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 outfrom behind the counter andbegan walkingtoward the frontdoor. While appellantwas walkingtowardthedoor, Laypulled
a gun out ofthc waistband ofhis pants. Lay then pulled the guWs slide back to chamber a round. pointedthe gun at appellant, and shothim in the leg. Price heard appellant say “Aw. hell no,” and sawhim fallto the floor. McCoyheard appellant say “You shotme,” followedby anothergunshot Price and McCoy ran down the aisle behind them and Price testified he 

### heard ‘a whole bunch of shooting.” Price estimatedheheard fiveormoreroundsbeing firedbuthe didnotknow which gun the shots came from. Oneof thevideorecordings fromthe securitycameras shows aviewfrombehindthecounter toward the front door. The recording shows Lay pulling a gun out ofhis waistband and walking behind the countertowardthe second cash registerandthe front door. Whenhereaches the end of counter, Lay leans overfrom behind apotted plant and fires the gun at appellantwho appears to be bending over. Appellant then drops out ofview on the far side ofthe counterwhile Lay moves to

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### the other side oftheplant. A second video recording shows a view fromthe side ofthe store looking atthe 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 frontofthe door. As appellantgets 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 counterwhile appellant continues to getup. The recording from behind the counter shows items being blown offthe top ofthe counter in front ofLay 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 usedby appellant on the night ofthe shooting was neverrecovered. 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 innercorner ofLay’s left eye and exited 

### from the back ofhis head. The second gunshot wound was on the front ofLay’s right foreann. Quinton testified it was “highly unlikely” that the 

### same bulletcaused both wounds. A

### bulletwasrecovered duringtheautopsy andafirearmsexperttestifiedthatitwas

### consistentwitha .38 or .357 

### calibergun. Based on information 

### from an informant, 

### Appellant was arrested several days 

### after the shooting 

### and charged 

### withthe offense ofcapital 

### 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 committhe offense ofROBBERY of said deceased.

-3-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 ofcapital 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 ofhis 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 ofthe evidence, we examine the evidence to determine whether any rational trier offact 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 ofa 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). Ifa 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 aloaded gun and that he pointed the gun at various people in the store during the course of the robber. One ofthe video recordings shows that after appellant was shot, he got up offthe 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 ofappellant’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) (ifparty 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 ofaccess to criminal trials 5cc Globe Newspaper Co v Supei zor (our! for Norfolk €nly, 457 U 5 596 604I 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 ofChurch 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 ofhis 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 ofclearing the courtroom, he must show that the action injured him personally and constituted a violation ofhis 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 ofclearing 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 ofthe 

### prosecutors closing argument because the argument injected a new, harmful fact

### before thejury thatwas not areasonable deduction from the evidence. Theargumentaboutwhich appellantcomplains involvedthediscussionofseveralphotographstaken at the scene ofthe 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 showthat athirdbulletcame throughand blew upthosespoons [onthecounter’?]” Atthatpointappellantobjectedstatingtheargumentwasoutside 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 thatis athirdbulletcomingthrough. blowing up that areaofthe counter. There’s more particles, andyou can followthose particles all the way down to the ground afterMr. Layandhis injuries arebelowthe counter.” Appellantcontends theprosecutor’s suggestionthathe 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 fromthe evidence, (3) answerto the argumentofopposing counsel, and (4) pleaforlawenforcement. See Wesbrookv. SKate, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). The Texas Court ofCriminal 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 andthat he has wide latitude without limitation in this respect so long as the argument is supported by the evidenceandofferedingoodfaith.” See Vaughnv. State. 607 S.W.2d 914.922—23 (Tex. Crim. App. [Panel Op.] 1980). The argumentatissue was theprosecutor’s interpretation ofthephotographic evidence that

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### was before thejury. 

### ills opinion that appellant fired a third bullet was supported not only by the 

### photographs. hut also by the liLetthatonly 

### two cartridgecasingsfrom Laysgun were recovered and Price testified he heard five ormore 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 suggestthat the argument was made in bad faith. Thejurors heardthe evidence andviewedthephotographs along with theprosecutorand were (lilly capable 

### ofdrawing 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 of 

### jury argument. We resolve appellant’s third issue against him We affirm the trial 

### court’sjudgment



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### JUDGMENT !J) BONIIIA. Appellant Appeal From the Q2nd Judicial District Court ofDallas 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 ofthis date, thejudgment ofthe trial court is AFFiRMED.
Judgment entered December 12, 2012.

JOSjJ4iB.MfRRrs —-—JUSTlCE