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. 1323910

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 photographs into evidence and in charging the jury. We conclude 

that legally sufficient evidence supports the conviction, that the trial court did not 

abuse its discretion in admitting the photographs, and that any error in charging the 

jury was harmless. Accordingly, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND

The complainant, Jose Prieto, and Ranulfo Lopez III were selling marijuana 

out of Lopez’s house. 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 entered 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 bushes for a short time before returning to his

home. Upon entering the house, he saw the complainant on the floor bleeding. 

Lopez called the police and then began performing cardio-pulmonary resuscitation 

at the police’s instruction, but Lopez was unable to save the complainant.

Around the same time, appellant 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. ISSUES AND ANALYSIS

Appellant presents three issues on appeal. He asserts that the evidence is 

legally insufficient to support his conviction and that the trial court erred in (1) 

admitting two photographs of the complainant into evidence and (2) charging the 

jury on the lesser-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 

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verdict. 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 witnesses 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. App. 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 essential 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 intentionally 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 

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parties under Penal Code section 7.02(a)(2) and the law of conspiracy 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, aids, 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 

capital 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. See 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 fired 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 complainant 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 entered the 

dwelling. 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 running. 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 Carpenter, a Harris County crime scene investigator, 

testified that the door to the dwelling appeared to have been forced 

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open, that items were scattered on the floor, and that a chair was 

overturned, suggesting that a struggle had taken place in the room.

• Deputy Bradley 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 multiple 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, Sergeant 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, and 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, blood found on the floor

of the breakfast area in Lopez’s house, blood found in the laundry 

room, blood found on the washing machine, blood found on the 

driveway, and blood found on a nearby road. The chances of another 

contributor are 1 in 191 quintillion Caucasians, 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 Hospital the 

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next day for further treatment. According 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 her that appellant and a Hispanic man ended up 

“getting into it, into tussling, 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 shot in the face by 

one of his conspirators and his adrenaline ran high.

• Appellant testified that he went to the house 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 broke in and “could swear” he heard shots almost immediately. We presume 

the jury credited Lopez’s testimony and discredited appellant’s. See Turro, 867 

S.W.2d at 47. 

The record contains evidence that appellant could not be excluded as a

source of blood in close proximity to the complainant or from 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, 

appellant 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, after 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 Logunkleko’s 

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testimony 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. 

Nonetheless, 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 beyond a reasonable doubt that, in an attempt to carry out a conspiracy 

to commit robbery, capital murder was committed by one of appellant’s fellow 

conspirators in furtherance of the unlawful purpose, and appellant should have 

anticipated the capital murder as 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 out 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 shots

almost immediately upon entry into the house; (4) appellant and the complainant

were struggling when a gun went off. At trial, appellant admitted to taking money 

from the floor while the complainant lay there dying from multiple gunshot 

wounds. 

The cumulative effect of the incriminating evidence would permit a rational 

trier of fact to find beyond a reasonable doubt that, in an attempt to carry out a 

conspiracy to commit robbery, one of appellant’s fellow conspirators committed 

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capital murder in furtherance of the unlawful purpose, and that appellant 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, 797–99 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Under the 

applicable standard of review, we conclude that the evidence is legally sufficient to 

support appellant’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 797–99. 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 appellant’s first issue.

B. Were two photographs of the complainant inadmissible under Texas 

Rule of Evidence 403?

In his second issue, appellant asserts that the trial court erred in admitting

over appellant’s objections, two photographs of the complainant celebrating his

birthday with his family. Appellant argues that the probative value of these 

photographs was substantially outweighed by the danger of unfair prejudice. We 

review a trial court’s ruling on the admissibility of evidence under an abuse-ofdiscretion 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: 

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Although 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. 

Montgomery 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 potential 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 photographs violated Rule 403. See 90 S.W.3d 330, 335–38 (Tex. 2002). In 

Salazar, the Court of Criminal Appeals held that a seventeen-minute video 

montage of photographs 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 admitted 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 

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evidence 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 appellant’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 that the trial court erred in submitting this 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 suffered some 

harm. See Almanza 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 counsel; 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

 The trial court instructed the jurors to consider the lesserincluded offense of aggravated robbery only if they had a reasonable doubt that 

appellant was guilty of capital murder. The charge instructions as a whole state 

that the jury should not consider aggravated robbery if the jury finds appellant 

guilty of capital murder. 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.

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introduced 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) (holding 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 

appellant suffered no actual harm from the submission of aggravated robbery as a 

lesser-included offense. See Almanza, 686 S.W.2d at 171; Arevalo v. State, 987 

S.W.2d at 166. Therefore, appellant’s third issue is overruled.

III. CONCLUSION

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-included offense was harmless.

The trial court’s judgment is affirmed.

/s/ Kem Thompson Frost

Chief Justice

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

Publish — TEX. R. APP. P. 47.2(b).

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