Affirmed and Opinion filed September 16, 2014.

In The 

## Fourteenth Court of Appeals

NO. 14

- 13

- 00433

- CR

MONSOUR G. OWOLABI , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 179th District Court Harris County, Texas Trial Court Cause No. 1 323910



### OPINION Appellant Monsour G. Owolabi asserts that the evidence is insufficient to support his capital

- murder conviction . He also asserts the trial court erred in admitting two p hoto graph s into evidence and in charging the jury

. We conclude
that le gally sufficient evidence supports the conviction, that the trial court did not abuse its discretion in admitting the photo graph s, and that any error in charging the jury wa s harmless

. Accordingly, we affirm

.I. F ACTUAL AND P ROCEDURAL B ACKGROUND The compla inant, Jose Prieto
, and Ranulfo Lopez III were selling marijuana
out of Lopez’s ho use

. Lopez testified that, after completing a deal one evening, Lopez and the complainant were at Lopez ’ s house when three individuals forced

open the back door and enter ed the dwelling. Lopez saw a gun on one of the
individuals
, ran out of the front door
, and hid in some bushes up the street. According to Lopez, he stayed in the bus h es for a short time before returning to his home. Upon entering the house , he saw the comp lainant on the floor bleeding

. Lopez called th e police and then began performing c ardio

- p ulmonary r esuscitation at the police’s instruction , but Lopez was unable to save the complainant

. Around the same time, a ppellant arrived at a nearby hospital seeking
treatment for a bullet wound in his cheek. Appellant could not be excluded as a source of blood at the crime scene and the complainant could not be excluded as a source of blood found on both appellant’s shirt and on a $20 bill in appellant’s possession. Appellant was arrested and charged by indictment with capital murder, to which he pleaded “not guilty.” A jury found appellant guilty as charged and he was automatically sentenced to life in prison without the possibility of parole.

II. I SSUES AND A NALYSIS Appellant presents three issues on appeal. He asserts that the evidence is legally insufficient to support his convicti on and that the trial court erred in ( 1) admitting two photograph s of the complainant into evidence and ( 2) charging the jury on the les ser

- included offense of aggravated robbery.

A. Is the conviction supported by sufficient evidence?
In evaluating a challenge to the sufficiency of the evidence supporting a criminal conviction, we view the evidence in the light most favorable to the

2verdict. Wesbrook v. State , 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State’s evidence or believe that appellant’s evidence outweighs the State’s evidence. Wicker v. State
, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson
v. State , 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact “is the sole judge of the credibility of the w itnesses and of the strength of the evidence.”
Fuentes v. State , 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. A pp. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State , 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the es sential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State , 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
In the indictment, it was alleged that, in the course of committing or attempting to commit robbery, appellant intentiona lly caused the death of the complainant by shooting him with a deadly weapon. A person commits capital murder if the person intentionally causes the death of an individual in the course of committing or attempting to commit robbery. See Tex. Penal Code § § 19.02(b), 19.03(a) (West 2014). A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both. See id. § 7.01(a); Cerna v. State , No . 14

- 12

- 01126

- CR,

— S.W.3d

— , — , 2014 WL3908117, at *3 (Tex. App.

— Houston [14th Dist.] Aug. 12, 2014, pet. filed).
The trial court’s instructions to the jury included an instruction on law of the

3parties under Penal Code section 7.02(a)(2) and the law of cons piracy under Penal
Code section 7.02(b). See id. § 7.02. A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, ai ds, or attempts to aid the other person to commit the offense. See id. § 7.02(a) (West 2014). If, in the attempt to carry out a conspiracy to commit robbery, capital murder is committed by one of the conspirators, all conspirators are guilty of the capit al murder actually committed, though having no intent to commit it, if the capital murder was committed in furtherance of the unlawful purpose, and should have been anticipated by the other conspirators as a result of the carrying out of the conspiracy. S ee id. § 7.02(b).
Appellant argues that the evidence is legally insufficient to prove beyond a
reasonable doubt that the capital murder should have been anticipated as a result of carrying out the conspiracy. In particular, he asserts that the evidence does not prove he possessed or fi red a gun or that he knew his conspirators possessed weapons or planned to fire them. At trial there was evidence of the following :

• Lopez testified that he ran a business selling marijuana out of his house and that the com plainant helped him. He testified that neither he nor the complainant possessed firearms

. According to Lopez, on the night of the murder, he had just completed a sale when the back door of the house was forced open and three individuals enter ed the dwell ing . He testified that he saw a tall, black man wearing a light gray shirt and black shorts enter the house with a silver gun. Lopez testified that Lopez ran toward the front door and “could swear” he heard gunshots being fired immediately as he was runn ing. Lopez testified that he hid in some bushes down the street until the cars left the home and then returned to find his scale
, marijuana, and money missing. Lopez also found the complainant shot, and observed bullet holes in the wall.

• Deputy Maurice C arpenter, a Harris C ounty crime scene investigator, testified that the door to the dwelling appeared to have been forced

4open , that items were scattered on the floor
, and that a chair was overturned, suggest ing that a struggle had taken place in the room.

• Deputy Bra dley Bruns, a firearms and tool

- mark examiner, testified that bullets at the crime scene were fired from at least two different weapons.

• Darshan Phatak, a Harris County assistant medical examiner, testified that the complainant was killed by mul tiple gunshot wounds. The complainant also had several contusions and lacerations that were consistent with a struggle. Phatak found stippling on the complainant, which indicates the complainant was shot at a range of one to three feet. Phatak also said that the downward angle of one of the gunshots was consistent with Prieto having been shot while falling or kneeling.

• Deputy Oscar Cisneros made contact with appellant later that night at a hospital near the crime scene. Appellant was receiving treatment for a gunshot wound to his cheek and lied to Deputy Cisneros about the cause of the injury. Shortly thereafter, while appellant was still at the hospital, S ergeant Anthony McConnell performed a gunshot residue test kit on appellant. When appellant asked him about the results of the test, Sergeant McConnell bluffed and told him the test was positive for gunshot residue. In response, appellant stated that he had held a gun that morning
, but that he had not fired a gun.

• Appellant’s belongings included $520 in cash, including a $20 bill that was blood

- stained. The complainant could not be excluded as a contributor to the blood stain on the bill. The chances of another contributor are 1 in 30 quintillion Caucasians, 1 in 56 quintillion African

- Americans, an d 1 in 343 quadrillion Hispanics. The complainant also could not be excluded as a contributor to a blood mixture found on appellant’s shirt.

• Appellant could not be excluded as a source of blood found on the butt of a magazine found at the crime scene, blo od found on the floor of the breakfast area in Lopez’s house, blood found in the laundry room, bl o od found on the washing machine, blood found on the driveway , and blood found on a nearby road. T he chances of another contributor are 1 in 191 quintillion C aucasians, 242 quintillion African

- Americans, and 1 in 273 quintillion Hispanics.

• Shaunda Logunkleko, the mother of appellant’s best friend testified that she visited appellant when he returned to Ben Taub H ospital the

5next day for further treatment . Acco rding to Logunkleko, appellant confessed that he had been shot by a Hispanic man after he and three other men set up a “robbery that went bad.” Logunkleko testified appellant informed he r that appellant and a Hispanic man ended up “getting into it, into t ussling, and in the process of the tussling, like wrestling, a gun went off.” Logunkleko stated that she told the police that he told her he fired a shot while he was being shot. Logunkleko stated that appellant said he had ended up getting sh ot in the f ace by one of his conspirators and his adrenaline ran high.

• Appellant testified that he went to the ho use with a friend to purchase marijuana when strangers broke in to rob the complainant and Lopez. The evidence shows that appellant was at the crime scene . Although appellant testified that he was there to purchase marijuana, his testimony contradicts Lopez’s version of events . Lopez stated that he and the complainant
were alone when three men intruded. Lopez testified that he saw a gun when the
men brok e in and “could swear” he heard shots almost immediately. We presume the jury credited Lopez’s testimony and discredited appellant’s. See T urro , 867
S.W.2d at 47

.

The record contains evidence that a ppellant could not be excluded as a source of blood in close proximity to the complainant or f rom contributing to blood
obtained from the butt of a magazine found at the crime scene

. The complainant
could not be excluded as a contributor to blood on appellant’s shirt. Additionally,

a ppellant was found with money containing blood stains from which the complainant could not be excluded as a source

. See Padilla v. State , 326 S.W.3d 195, 200 (Tex. Crim. App. 2010). Appellant argues that the biological evidence does not prove he fired a weapon because his blood could have dropped on the magazine butt
, and in the area
, afte r he was shot. According to Logunkleko, appellant admitted his involvement in a plan to rob the complainant, to wrestling
with the complainant, and firing a gun. Appellant argues that Logunkl eko’s

6testimony is in conflict as to whether he fired a gun. At one point, Logunkleko stated that appellant and Prieto were struggling when a gun went off
, and then
another shot was fired
, and appellant did not know who fired that other shot. Logunkleko also testified that she informed police that appellant fired a shot when he was being shot. We must presume that the jury resolved any conflicts in Logunkleko’s testimony in favor of the prosecution, and we must defer to that
resolution. See id.

Noneth eless, even if appellant did not fire a gun and did not commit capital murder by his own conduct, the evidence still is sufficient to support appellant’s
conviction if , under the applicable standard of review, a rational trier of fact could have found beyo nd a reasonable doubt that, i n an attempt to carry out a conspiracy

to commit robbery, capital murder wa s committed by one of appellant’s fellow conspirator s in furtherance of the unlawful purpose, and appellant should have anticipated the capital murder a s a result of the carrying out of the conspiracy. See Tex. Penal Code § 7.02(b). The evidence would allow a rational trier of fact to find beyond a reasonable doubt that (1) appellant conspired with others to commit robbery ; (2) in an attempt to carry ou t that conspiracy, the conspirators forced their way into Lopez’s house while at least one of appellant’s fellow conspirators was carrying a firearm; (3) at least one of appellant’s fellow conspirators fired shot s almost immediately upon entry into the hou se; (4) appellant and the complainant were struggling when a gun went off . At trial, a ppellant admitted to taking money
from the floor while the complainant lay there dying from multiple gunshot
wounds.
The cumulative effect of the incriminating evidenc e would permit a rational
trier of fact to fin d beyond a reasonable doubt that, in an attempt to carry out a conspiracy to commit robbery, one of appellant’s fellow conspirators committed

7capital murder in furtherance of the unlawful purpose, and that appe llant should have anticipated the capital murder as a result of the carrying out of the conspiracy.
See Tex. Penal Code § 7.02(b); Canfield v. State , 429 S.W.3d 54, 69

– 70 (Tex. App.

— Houston [1st Dist.] 2014, pet. ref’d); Whitmire v. State , 183 S.W.3d 522
, 526

– 27 (Tex. App.

— Houston [14th Dist.] 2006, pet. ref’d) ; Turner v. State , 414 S.W.3d 791, 797

– 9 9 (Tex. App.

— Houston [1st Dist.] 2013, no pet.)

. Under the applicable standard of review, we conclude that the evidence is legally sufficient to support appe llant’s capital

- murder conviction as a conspirator under Penal Code section 7.02(b)

. See Tex. Penal Code § 7.02(b); Canfield , 429 S.W.3d at 69

– 70;
Whitmire , 183 S.W.3d at 526

– 27 ; Turner , 414 S.W.3d at 797

– 9 9. See also Moore
v. State , 24 S.W.3d 444, 447 ( Tex. App.

— Texarkana 2000, pet. ref’d) (holding that sufficient evidence supported aggravated

- robbery conviction when accused’s
fellow conspirator shot victim with weapon found in the home and noting that “when an individual decides to steal property from a private residence, he should anticipate that he might be confronted and that his conspirators might react violently to that confrontation”).
Accordingly, we overrule a ppellant’s first issue.

B. Were two photographs of the complainant inadmissible under T exas Rule of Evidence 403? In his second issue, a ppellant assert s that the trial court erred in admitting over appellant’s objections, two photograph s of the complainant celebrating his birthday with his family

. Appellant argues that the probative value o f these photographs was substantially outweighed by the danger of unfair prejudic e . We review a trial court’s ruling on the admissibility of evidence under an abuse

- of

discretion standard. See Coble v. State , 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). Texas Rule of Evidence 403, entitled “Exclusion of Relevant Evidence on Special Grounds,” states:

8Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Montgo mery v. State , 810 S.W.2d 372, 389 (Tex. Crim. App. 1990) (op. on reh’g)

. A proper Rule 403 analysis by either the trial court or a reviewing court includes, but is not limited to, the following factors: (1) the probative value of the evidence; (2) the po tential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the
evidence. Erazo v. State , 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). In the
context of the admission of photographs, we also consider the number of photographs, their size, whether they are in color or are black and white, whether they are gruesome, whether any bodies are clothed or naked, and , where applicable, whether the body has been altered by autopsy. Id.
Appellant relies on State v. Salazar to support his contention that admitting the photo graphs violated Rule 403. See 90 S.W.3d 330, 33 5

– 38 (Tex. 2002). In Salazar , the Court of Criminal Appeals held that a seventeen

- minute video montage of photogra phs depicting the murder victim’s life, set to music from the
movie Titanic , was inadmissible victim

- character evidence and remanded to the court of appeals to determine whether the error was harmful. See id. Unlike the video montage the trial court admi tted in Salazar , the two photographs of the complainant with his family were still images that were small in size. The photographs are probative of the complainant’s identity, which the State had the
burden to establish. Gonzalez v. State , 296 S.W.3d 620 , 632 (Tex. App.

— El Paso 2009, pet. ref’d). The time taken to develop the evidence was minimal. The trial court did not abuse its discretion in determining that the probative value of the

9evidence was not substantially outweighed by the danger of unfair prejudice. See
Williams v. State , 958 S.W.2d 186, 196 (Tex. Crim. App. 1997) ; Gonzalez , 296
S.W.3d at 632. Accordingly , we overrule a ppellant’s second issue.

C. Was any error in submitting aggravated robbery to the jury as a lesser

- included offense harmless? In his third issue, appellant argues that the trial court erred in submitting to the jury the offense of aggravated robbery as a lesser

- included offense. We presume for the sake of argument that appellant objected on this basis in the trial
court and tha t the trial court erred in submitting th is lesser

- included offense to the jury. Even presuming for the sake of argument that the trial court erred in submitting the instruction, reversal is appropriate only if appellant suffere d some
harm

. See A lmanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). The actual degree of harm must be assessed in light of (1) the entire jury charge, (2) the state of the evidence, including the contested issues and weight of probative evidence, (3) the argument of coun sel; and (4) any other relevant information revealed by the record as a whole. Id.
Appellant does not provide any argument as to how submitting this offense to the jury harmed him. 1 T he trial court instructed the jurors to consider the lesser

included offense of aggravated robbery only if they had a reasonable doubt that appella nt was guilty of capital murder

. The charge instructions as a whole state
that the jury should not consider aggravated robbery if the jury f inds appellant guilty of capital murd er. The first factor weighs in favor of finding any error
harmless. The evidence was sufficient for the jury to convict appellant of capital murder and the jury did so. If anything, the additional instruction provided the jury with an option to convict appellant of a lesser offense based on the evidence

1 We do not suggest that appellant had a burden to brief or show harm ; we simply note that he has not argued or explained how he was harmed.

10introduced at trial. The second factor weighs in favor of finding any error harmless. Counsel directed his argument to possible questions that allegedly were not addressed by the evidence . This factor is neutral in our analysis. Under the fourth factor, we consider the jury’s determination that appellant is guilty of the greater offense of capital murder

. See Arevalo v. State , 987 S.W.2d 164, 166 (Tex. App.

— Houston [1st Dist.] 1999, pet. ref’d) (holdi ng that it was harmless to instruct jury on lesser

- included offense where jury convicted the accused of the greater offense). Under the Almanza “some harm” analysis, we conclude that

a ppellant suffered no actual harm from the submission of aggravated robb ery as a lesser

- included offense. See Almanza , 686 S.W.2d at 171; Arevalo v. State , 987
S.W.2d at 166. Therefore , a ppellant’s third issue is overruled.
III. C ONCLUSION Appellant’s conviction is supported by legally sufficient evidence. The trial
court did not err in admitting into evidence photographs of the complainant celebrating his birthday. Any error in the trial court ’s jury submission of the offense of aggravated robbery as a lesser

- include d offense was harmless. The trial court’s judgment is affirm ed.

/s/ Kem Thompson Frost Chief Justice

Panel consists of Chief Justice Frost and Justices Donovan and Brown.
Publish

— T EX

. R. A PP

. P. 47.2( b).

11