## 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 159T H

JUDICIAL DISTRICT COURT

ANGELINA COUNTY, TEX AS

MEMORANDUM OP

INION 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 af firm.

B ACKGROUND 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 de aler, 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 punish ment at imprisonment for life without parole. This appeal followed.

E VIDENTIARY S UFFICIENCY 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 alternativel y argues that even if the2

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. Virginia 1 legal sufficiency stand ard 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. Sta te , 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 su ccessful 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 offe nse 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 th e 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 Sta te 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 T EX

. P ENAL C ODE A NN . § 19.03(a)(2) (West 2011); T EX

. P ENAL C ODE A NN . § 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. Cr im. 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 ro b 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 Woo dard 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 e ntered 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 inf erred 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 T EX

. P ENAL C ODE A NN . § 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 dr ug 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.

D ISPOSITION Having overruled Appellant’s sole iss ue, we affirm the trial court’s judgment.



### S AM 

### G RIFFITH 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 judg ment
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 DISTRIC T 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 ju dgment 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 wo rds:

“ THIS CAUSE came to be heard on th e 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 affirm ed , 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 recogni zed, 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, CL ERK

By:

_ ______________________________ Chief Deputy Clerk