NO. 12-12-00424-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RAFAEL ORTA, JR., 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

§

§

§

APPEAL FROM THE 159TH 

JUDICIAL DISTRICT COURT

ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

Rafael Orta, Jr. appeals his conviction for capital murder, for which he was assessed a 

sentence of imprisonment for life without parole. Appellant raises one issue challenging the 

legal sufficiency of the evidence supporting the conviction. We affirm.

BACKGROUND

Appellant was charged by indictment with capital murder and pleaded “not guilty.” The 

matter proceeded to a jury trial. 

The evidence at trial showed that on February 7, 2012, Appellant and four other men 

went to the home of a drug dealer, Robert Darnell Bennett, to rob him at gunpoint. In the course 

of the robbery attempt, one of the men shot Bennett twice in the torso, killing him. 

Ultimately, the jury found Appellant “guilty” of capital murder. The trial court assessed 

his punishment at imprisonment for life without parole. This appeal followed.

EVIDENTIARY SUFFICIENCY

In his sole issue, Appellant argues that the evidence is legally insufficient to support a 

finding that any of the men intended to kill Bennett. He alternatively argues that even if the 
2

shooter intended to kill Bennett, the evidence against Appellant is insufficient because it fails to 

show that he knew of the shooter’s intent. 

Standard of Review and Governing Law

The Jackson v. Virginia1legal sufficiency standard is the only standard that a reviewing 

court should apply in determining whether the evidence is sufficient to support each element of a 

criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v. 

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional 

minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a 

criminal conviction. See Jackson, 443 U.S. at 315–16, 99 S. Ct. at 2786–87; see also Escobedo 

v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a 

legal sufficiency challenge is whether any rational trier of fact could have found the essential 

elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 

2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is 

examined in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 

2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in 

rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 

S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).

The sufficiency of the evidence is measured against the offense as defined by a 

hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 

1997). Such a charge would include one that “accurately sets out the law, is authorized by the 

indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict 

the State’s theories of liability, and adequately describes the particular offense for which the 

defendant is tried.” Id.

To prove Appellant guilty of capital murder by conspiring to rob Bennett, the State was 

required to prove that he conspired to rob Bennett; that during the attempt, a conspirator 

intentionally killed Bennett; that the killing was in furtherance of the robbery; and that Appellant 

should have anticipated the killing. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West 2011); TEX.

PENAL CODE ANN. § 7.02(b) (West 2011).

 

1

443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979). 
3

Analysis

Intent is a fact question to be resolved by the trier of fact based on all of the facts and 

circumstances in evidence. Hemphill v. State, 505 S.W.2d 560, 562 (Tex. Crim. App. 1974). 

“The jury may infer the intent to kill 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 of the weapon.” 

Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). Intent may also be inferred from 

the wounds inflicted. Hemphill, 505 S.W.2d at 562. 

Viewed in the light most favorable to the jury’s verdict, the evidence in this case shows 

that Appellant and his associate Jacob Woodard began planning to rob Bennett while at 

Appellant’s house. Appellant, Woodard, and three others then drove to two different places and 

obtained weapons for use in the robbery: a rifle and a .45-caliber pistol. Both guns were loaded. 

Once at Bennett’s house, Appellant and Woodard called Bennett to tell him that they were there. 

Appellant and three other men exited the vehicle and approached the house. Some of the men 

wore masks and gloves. Woodard went inside the fenced area carrying the pistol. The other men 

heard a gunshot, ran back to the vehicle, and fled the scene. None of the men called for help. 

Bennett was subsequently found dead with his left pants pocket pulled out. He had been shot 

twice, once from outside the residence and once from inside. One of the bullets entered 

Bennett’s left side and traveled through his spleen and kidney. The other bullet entered 

Bennett’s torso near the armpit area and traveled through his lung and heart. Both gunshot 

wounds were potentially fatal. 

The jury could have reasonably inferred from Woodard’s use of a deadly weapon that he 

intended to kill Bennett. See Jones, 944 S.W.2d at 647. It could have further inferred this intent 

from the fact that he was shot more than once, and from the fact that both shots were potentially 

fatal. See Hemphill, 505 S.W.2d at 562. The State had no burden to show that Appellant 

intended to kill Bennett, or that he knew of Woodard’s intent, but simply that the murder was 

committed in furtherance of the robbery and should have been anticipated as a result of carrying 

it out. See TEX. PENAL CODE ANN. § 7.02(b). Appellant concedes that the evidence shows he 

conspired to rob Bennett. Appellant should have anticipated that an intentional murder might 

occur in furtherance of the conspiracy to rob the drug dealer at gunpoint. See Whitmire v. State, 

183 S.W.3d 522, 526-27 (Tex. App.–Houston [14th Dist.] 2006, pet. ref’d) (murder resulting 

from armed robbery of drug dealer is “perfectly foreseeable”).
4

Based on our review of the record, we conclude that a rational trier of fact could have 

found Appellant guilty beyond a reasonable doubt. We therefore hold that the evidence is 

sufficient to support the jury’s verdict. Appellant’s sole issue is overruled. 

DISPOSITION

Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

SAM GRIFFITH

 Justice

Opinion delivered January 8, 2014.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JANUARY 8, 2014

NO. 12-12-00424-CR

RAFAEL ORTA, JR.,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 159th District Court 

of Angelina County, Texas (Tr.Ct.No. 2012-0233)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court 

below for observance.

Sam Griffith, Justice.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J..
THE STATE OF TEXAS

M A N D A T E

*********************************************

TO THE 159TH DISTRICT COURT OF ANGELINA COUNTY, GREETING:

Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 5th

day of January, 2014 , the cause upon appeal to revise or reverse your judgment between

RAFAEL ORTA, JR., Appellant

NO. 12-12-00424-CR; Trial Court No. 2012-0233

By per curiam opinion.

THE STATE OF TEXAS, Appellee

was determined; and therein our said Court made its order in these words:

“THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the 

same being considered, it is the opinion of this court that there was no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court 

below be in all things affirmed, and that this decision be certified to the court below for 

observance.”

WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals 

for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly 

recognized, obeyed, and executed.

WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court 

of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of 

Tyler, this the xx day of January, 2014.

CATHY S. LUSK, CLERK

By: _______________________________

Chief Deputy Clerk