1 John T. Boyd, Chief Justice(Ret.), Se venth Court of Appeals sitt ing by a ssignment. NO. 07-03-0017-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E FEBRUARY

18, 2004

______________________________ RANDY CORTINEZ, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 1 08TH DI STRICT COURT OF PO TTER CO UNTY; NO. 43,412-E; H ONORABLE ABE LO PEZ, JUDGE

_______________________________ Before QUINN and REAVIS, JJ. an d BOYD, S.J. 1
MEMORA NDUM OPIN ION
Followi ng a plea of not guilty , appellant Rand y Cortinez was conv icted by a jury of murder and punishment was assessed at 80 yea rs confin ement and a $10,000 fine. Presenting three points of error, appe llant asser ts the trial court erred (1) in denying his2

requestfor an instructed verdict of acquittal because the evidence was leg ally ins ufficient to support a conv iction for murder; (2)

in chargi ng the jury

on the law

of parties w hen the evidence is factually insufficient to sup port a finding that he acted as a party to the murder; and (3) at the puni shment phase of the tri al by rec onvening t he jury after it had been dismissed and le ft the courtr oom. Based upon the rationale expr essed h erein , we affirm.
On the night

of July 7, 2000, appellant, h is brothers, Domingo and Michael, and th eir friend, Chris, w

ere at a bar the y frequented. The victi m and his friend, Johnny, who were not regular

patrons of

the bar, arr ived near c losing time to have some drinks and dance. Atapproximately 1:00 a.m. on July 8, the victim was ejec ted from the bar for being drunk and obnoxious. Shortly after last call was announced , Johnny noti ced the victim was not in the bar

and went outside to look for him

. He observed appellant and his two brothers, who were all heavy s et, and a female near the victi m. The victi m was five feet, four inches tall and weig hed 103 and 1/2 pounds. Johnny test ified that althoug h he did not s ee appellant

attack the v icti m, while at

tempting to ai d the vict im and instruc ting him to run, he suffered a deep cut on the side of his face. Joh nny ran along the sidewalkshouting that his friend was being kill ed. Momen ts later, J ohnny saw the victi m lying in a puddle of blood. In shock , Johnny ra n to his car and hastily drove aw

ay. According to the manager of the bar and two security guards, after

the victi m was ejected from the bar, Domi ngo and his g irlfriend had an argument a nd stepped outsideto talk. Chris tes tified that he, appellant, and Michael followed Domingo outside. Dom ingo’s3

girlfrie nd testified that s he and Domingo w ere arguin g and that he was drunk and she was crying. Appellant and M ichael tri ed t o break up the argument and calm her dow n. The victim approached the group several times inquiring about the welfare of Domingo’s girlfrie nd. He wastold sever al times by appellan t and Michael that every thing was fine and asked to leave. Upon interferi ng in the ar gument for a thir

d time, the v ictim was

attacked by appellant and Michael. Evidence was presented that the victim was punched a nd kicked, and conflicting evidence w as presented on w hether appellant used a knife or other object to inflict the victim’s wounds. Chris eventuallypulled appell ant and Michael off the victim and urged them to get in to their car . According to Chris, after he broke up the fig ht, the victim r

emained on the ground with blood around him. Th e Cortinez brothers left in a car driven by a female frien d, and Chris drove away in hisown car.
The bar manager testified that after the Cortinez brothers left, he noticed the victim
was “bleeding out o f e veryw here.” The bartender called t he police and one of the responding officers testified thatwhen he arrived at the scene he found the victim lying in
a large pool of blood. Accord ing to the officer , the vict im was not moving and his breathin g was very l abored. Another of ficer took pads from a first aid kit and packed the vict im’ s wounds and began CPR until the ambulance arrived. The victim did not survive the attack and the medical ev idence establi shed that he suffered 18 wounds–14 were stabs and 4 were in cise --to t he ne ck are a with the f atal wound s per for atin g his le ft ca rotid arte ry.4

TABC officers in an unmarked car w ho were pr eparing to g o off dutyheard the radio call abou t the figh t and coin cide ntal ly, while they were stopped at a red light, noti ced that the passenger

s in the c ar next to them looked suspi cious. They followed the car to a
re sidence and notified local law enforce ment to follow up. Several police off icers were dispatched to the residence. They approach ed the house on foot in a tactical manner wi th weapons drawn bel ieving the suspects w ere armed and dang erous. Mic hael and three females were sta nding in the driveway. Mic hael had blood on his pants and was asked to
assumethe position. Shortly thereafter appell ant approached from the backyard an d after officers noticed bl ood on his pants, he was orde red to his kn ees and handcuffed. By his first point of error, appellan t asserts the trial court erred in deny ing his request for an instructed verdict of acquittal because the evidence is legally insufficient to support
a convicti on for murder. We disagree. In conduc ting a legal sufficiency review, we must determine wheth er, a fte r viewin g the e viden ce in the l ight m ost f avo rable t o the prosecution, any rati onal trier of fact could have found the essential elements of the c rime beyond a reasonable doubt . Jackson v . Virgin ia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 5 6 0, 573 (1979); Geesa v. State, 82 0 S.W .2d 154, 157 (Tex.Cr.App. 19 91), overruled

on other grounds , Paulson v. State, 28 S.W .3d 570, 573 (Tex.Cr.App. 20 00). As an appellate court, we may not sit as a thirteenth juror, but must uphold the jury's verdict unless it is irrational or unsupported by more than a mere modi cum of evidence. M oreno v. State, 755 S.W .2d 866, 867 (Tex.Cr.App. 19 88).5

Before determining whether th e evidence i s legall y sufficient to sustain th e convicti on, we must r

eview the elements the State was r equired to pr

ove. In or

der to be guilty of murder, the State was req uired to prove that appellant intentionall y or

knowingly caused the death of the victim, or intended to cause serious bodily i njury and committed
an a ct clearly

dangerous to human life that caused the death. Tex. Pen. Code Ann. § 19.02(b)(1)and (2) (Vernon 2003). Section 6.03 of the Pena l Code defines the culpable mental states of “i ntentionally” and “know ingly”as follows : (a) A person acts intentionall y . . . w ith respect to the nature of his condu ct or to a result of his conduct when it is h is conscious objective or desire to engage in t he conduct or cause the result

. (b) A person actsknowing ly . . . with respect tothe nature of his conduct or to circumstances surroundi ng his conduc t when he is

aware of the nat ure of his conduct or that

the circumstances exist. A pers on ac ts kn owingl y . . . wit h respect to a result of his conduct whe n he is aware that his conduct is reasonably certain to ca use the result

. Murder, intentionally or kno wingly co mmi tted , is a r esul t orie nted off ense . Coo k v. State, 884 S.W.23d 485, 490 (Tex.Cr.App . 1994). The accused must have intended the result, death, or have bee n a ware that h is conduct w as reasonably

certain to cause that result. Id. Further, in establishin g intent or knowledg e and when faced with a record that supports conflicting inferences, we must pr esume–even if it does not affirmat ively appear in the record–that

the trier of fact resolved any such con flict in favor of the prosecuti on and must defer to that re solution. Couchman v. State, 3 S.W .3d 155, 163 (Tex.App. –Fort Worth 1999, pet. ref’d), c iting Mat son v. State, 819 S.W.2d 839, 846 (Tex.Cr.App. 1992 ).6

Eye wi tness testimony

established t hat the vic tim was s everely

beaten by appellan t. Appellant’s friend, Chri s, testified he s aw appellant down on one knee repeatedly “punch ing” the victim w ith his ri ght hand and that he had topull appellan t off of him. The manager of the bar te stified that when he went to the pa rking l ot to conduct a “ routine check” prior

to closing , he observed appellant on top of the vic tim “going at him” and that he noticed a reflec

tion from a blade that

a ppellant w as holding i n his rig ht hand. Duri ng directexamination, the witnes s claimed he saw appellant use a knife to stab the v icti m; during cross-ex

amination, however, he w avered and testi fied he could not be sure if appellant

used a knife. One of the security guards from thebar, who w as familiar w ith the Cortinez brothers, tes tified that w hile the v ictim was laying face down, he obs erved appellant

on top of him with his left arm underneath the v ictim’s nec k while he was striking him with hi s right

hand. He did not see appellant use a knife or ot her sharp ins trument.
Domi ngo’s girlfri end and Chris testified that appel lant worked for a fire a nd wate r restoration service and that his job required him to use all so rts of knives and sharp instruments. Domingo’s girlfri end claimed she di d notsee appellant use a weapon during the fight.
The medical examiner explained that the victim died f rom 18 wounds, two of them being fatal wounds t

o his neck that

perforated his carotid arte ry . So me of the wounds indicated the use of a sharp i nstrument, probabl y one wi th a single-edge. The victim also7

sustained numerous bruises and contu sions caused by blunt force most likely resulting from being kic ked or being hit wit h a knee or fist.
Forensic evidence es tablished that t he victi m’s blood was foun d o n the running board of the right passenger s ide of the car in which appel lant left the scen e. The victim’s blood was also found on appellant’s bo ots, jeans, and hands. Although cl othing and boots from three other

suspects was also tested , a DN A analy st tes tified that t he lar

gest volu me of the victi m’s blood was found on appellant’ s clothing

. B ased o n the foregoing evidence, i ncluding theconflicting testimony r egarding whether appellant used a knife or sharp instrument, we must defer to the jury’s resolution in favor of the pros ecution t hat appe llant was aware that his conduct was reasonably certain to cause death. We conclude that reviewing the evidence in the light most fav o rable to the prosecut ion, any r ational tri er of fact could have found the essential elements of murder beyond a reasona ble doubt. Appellant ’s first poi nt of error is overrul ed. Byhis s econd point of err or, appellant c hallenges th e trial cour t’s inclus ion in t h e charge of the law of par ties contending the evidence is factua lly i nsufficient to suppor t a finding that he acted as a party to murder. We disagree. In con ducting a factual sufficiency review , the Court of Criminal Appeals has dir ected us to ask w hether a neutral review of all the ev idence, both for and against the find ing, demonstr ates that the proof of guiltis so obviously

weak as to undermine confidencein the fact finder’ s determination, or the pro of of g uil t, al thou gh a deq uateif ta ken a lone , isgr eatl y ou twe igh ed by

cont rar y pr oof.8

Johnson v. State, 23 S.W .3d 1, 1 1 (Tex.Cr. App. 20 00) (ado pting compl ete civi l factual sufficiency formulation); see also King v . State, 29 S.W.3d 556, 563 (Tex.C r.App. 2000). Acco rdin gly, we will reverse the fact finder’s determination on ly if a manifest injustice has occurred. Johnson , 23 S.W.3d at 12. I n con duct ing th is an alysis , we may disag ree with the jury’s

determination, even if probative evidence supports the verdict, but m ust avoid substituting our judgment for that of the fact finder

. See Santellan v . State, 939 S.W.2d 155, 164 (Tex.Cr.App. 1997). It is theexclusi ve prov ince of the fact finder to determine the credibili ty

of the wit ness es an d the weight to be given t heir test imon y. Joh nson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App. 1 978); Ar mstron g v . State, 958 S.W.2d 278, 284 (Tex.App.--Amarillo 1997, pet. ref'd). The jury cha rge prov ides in part: All persons are partiesto an offense who ar e proven beyond a reasonable doubtto be guilty of acting together in the com mission of the offense. A person is crim inal ly responsible as a party to an offense if the offe nse is committed by his o wn con duct , by t he co nduct of anoth er for which he is criminally

responsible, or both. Aperson is criminallyresponsible for an offense committed by the conduct of another if, acti ng wit h intent to promote or assist the commission of the offense, he solicit

s, encourages , direct, ai ds, o r att empts to aid the ot her person to commit the offense. M ere presence al one will not constitute one a party to an offense.
The charge al so authorized the jury to convict appellant as a party or a principal actor. During the charge conference defense counsel objected to the i nclusion o f the law of9

parties on th e grou nd th at th e evid ence showe d that if appellant “ did anything , he was acting alone .”
In determining whether a charge on the law of parties is raised by

the evidence, the trial court may look t o even ts occurri ng before, duri ng, and after the commission of the offense. Goff v. State, 931 S.W.2d 537, 544-45 (Tex.Cr.App. 199 6), cert. denied, 520 U.S. 1171 , 117 S.Ct. 1438, 137 L. Ed.2d 545 (1997); Medellin v . State, 617 S.W.2d 229, 231 (Tex.Cr.A pp. 1981). A defenda nt is criminally responsible for an off ense commit ted by another if, w ith the intent to promote or ass ist the commission of the of fense, he solicits, encourages, directs, ai ds, or attempts to aid the other in the offense. Tex. Pen. Code Ann. § 7.02(a)(2) (Vernon 2003).
Chris testified that appe llantand his brother Michael w

ere beating t he victi m and thathe ha d to p ull them both off o f him. Domingo’s girlfriend testified tha t when police arrived at the Cortin ez reside nce and arrested Michael, h e said, “if anything happened, I did it.” For

ensic evi dence establis hed that the vi ctim’s DN A was found on Michael’s boots and jeans and that M ichael had a fresh cut on afinger on his left hand. Whether appellant assisted or aid ed Mic hae l in be atin g the vi ctim or whet her h e was t he pr imar y acto r, we conclude after revi ewing al l the record evide nce un der Johnson , 23 S.W.3d at 11, and without su bstituting our own j udgment, that theevidence is factually sufficient to support the trial cour

t’s inclus ion in the char

ge of the law

of parties. Point of error two is overrule d.2 The jury verdict forms at the punishment stag e consisted of thr ee letter size pages. The first page contained paragr aphs numbered 1, 2, and 3 with a signature line f or each for the pr esiding ju ror for t he asse ssment of pun ishmen t. Simila rly, the sec ond pa ge contained paragraphs 4, 5, and 6 wi th a signatur e line for each for the presiding juror, and the last page contained o nly paragraph 7 with a signature line for the presiding juror. When the jury firstreturned with it s verdic t, the presidi ng juror presented the thr ee pages as its verdict, reflecting by signature of the presiding juror that the jury had de cided on paragraph 4 on the s econd p age . Althou gh the trial j udge did not not ice the thir d page, after he discharg ed the jury and was doi ng his “judicial housekeeping, ” he noticed th at paragraph 7 had been complete d and sign ed by the presiding juror but crossed out his signature a nd all of parag raph 7. 10 By his third point of error, appellant contend s the trial cour t erred by reconvening the jury after it had been di smissed and left th e courtroom. F or the reasons ex pressed herei n, the point is moot. After the trial court received the jury’s verdict on punishment and befo re pronouncing s entence, it announced the content of verdict number four of the charge:
W e the jury , having found the Defendant gui lty of the ind icted offense of murder, assess punis hment at confinement in the Texas Department of Criminal Justice Ins titutional Divis ion for a period of 80 years, and assess a fine in the amoun t of $10,000.0 0, signed by the presiding juror.
After the trial court thanked the jurors for t heir ser vi ce an d asked th e bai liff to escort them outof the courtroom, t he trial cour t realized th at the last pag e of the charge containing verdictnumber seven which pl aced appellant on communi ty superv ision for 80 years had also been signed by

the presidin g juror. However, his si gnature was crossed out and the other juror

s had placed thei r initial s near his marked out sign ature. 2
In an abundance ofcaution, the trial court directed the bailiff to recall the jurors. The record reflects the jurors were headed to their car s when asked to return to the co urtro om.11

After defense counsel’snumerous objecti ons to recall ing the jury and his motion for mis trial
were overruled, the jurors were re convened and i nstr ucte d by th e cou rt to retir e and give
some indication of their intent in signing two verdict forms. Afte r deli berating a second time, they

returne d with the s ame cha rge which contained a note from the presiding juror with initials of other juror s on verdi ct number seven indicating it was signed in error and that verdict number four repres ented their unani mous verdic t.
Once the trial court accepts a verdict and discharg es a jury, it is not authorized to recall the jury

to have a verdict cor rected. West v. State, 170 Tex. Crim. 317, 340 S.W.2d 813, 815 (1960); see a ls o W ebber v. State, 652 S.W .2d 781, 782 (Tex.Cr.App. 19 83). However, when the ju ry has not separated or has only momentari ly separa ted and is still in the presence of thecourt and it appears that no one has talked tothe jurors about the case, the court may

recall the jurors tocorrect the ir ver dict. Webber, 652 S.W.2d at 782. West and Webber, howeve r, are dist inguishabl e and do not apply becaus e they involved corrected verdicts. Here, altho ugh the juror s had left the cour

troom and wer

e headed to their cars, the trial court di d not err in reconvening them because the pr oper verdi ct h ad already been returned and received by the trial court following the jury’s initial deliberations. Verdict numb er se ven, whi ch had been sig ned in error , had been cross ed out and approved by all j urors pri or to their discharge. Thus, further deliberat ions by the jury after being reconvened did not result in a corrected verdict as in West and Webber and similar cases cited by

appellant. We find appellant’s t hird contenti on moot.12

Accordingl y, the judg ment of the trial court is affirmed.
Don H. Reavis Justice Do not publish

.