Opinion filed January 25 , 20 2 4



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 22

- 00031

- CR

__________
WILLIE OTEY HENDERSON , Appellant
V.
THE STATE OF TEXAS , Appellee

On Appeal from the 238th District Court Midland County , Texas Trial Court Cause No. CR52697

M E M O R A N D U M O P I N I O N The jury found Appellant, Willie Otey Henderson, guilty of one count of murder and two counts of tampering with evidence. See T EX

. P ENAL C ODE A NN

. § § 19.02 ( b ) , 37.09 (West Supp. 2023 )

. The jury also found the enhancement paragraphs to be true and assessed Appellant’s punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for sixty years2 for the murder conviction and for ten years for each tampering

- with

- evidence
conviction

. Appellant challenges his murd er conviction in two issues. We affirm. Background Facts On October 21, 2018, Marcus Anthony Rubio and Joe Matthew Rubio went to check on their brother, Michael Rubio , 1 at his apartment at the Midland Square Apartments

. Rubio had missed work on October 20, and his friends, family, and
coworkers had been unable to reach hi m . Jeremy Burns, Rubio ’s friend, was waiting
for the brothers outside the apartment when they arrived . Joe used a spare key to
Rubio ’s apartment and unlocke d the front door. The three men saw Rubio laying on the floor in the doorway. Marcus called 9

- 1

- 1 and told the dispatcher that his brother
was dead.
When Sergeant Detective Saul Bernal with the Midland Police Department
arrived at Rubio ’s apartment on Oc tober 21, paramedics informed him that a deceased male was in the doorway of the apartment. Sergeant Bernal entered the apartment and noticed a bottle of Clorox bleach and a knife in the kitchen area.
Officer Je ffrey Sommer with the Midland Police Depart ment recalled a “pungent” bleach smell in the apartment. Officers initially suspected Rubio had been stabbed to death because of the knife and bleach on the counter. Marisa Payne, a crime scene investigator with the Midland Police Department, photographe d a shoeprint left in the mud by Rubio ’s front door and a partial shoeprint with a diamond pattern left in
the blood on Rubio ’s floor. Sergeant Bernal testified that he initially thought a robbery had taken place in
Rubio ’s apartment because drawers thro ughout the apartment were open and appeared rummaged through. However, Sergeant Bernal noticed things of value,
like Rubio ’s television, were still in the apartment. Marcus and Joe testified that

1 All references in this opinion to “Rubio” are to the decedent, Michael Rubio.3 Rubio ’s apartment was not in a state he would have left it in, and Marcus described
Rubio a s a very “neat” person. Marcus and Joe both knew that Rubio sold illegal drugs “on the side,” and Joe testified that Rubio was planning on “slowly but surely stop[ping] altogether.” Officer Sommer learned that the pickup Rubio drove for his job was missing. After obtaining the pickup’s GPS location, Officer Sommer found it parked at a nearby apartment complex. While crime scene investigators processed the pickup,
Officer Sommer and other officers began walking around the area in between the two apartment complexes to search for any additional evidence. Officers found two cell phones discarded in a “trench” located between the two apartment complexes.
The cell phones were missing th eir SIM cards. Officer Sommer surmised the two phones had been placed in the trench recently because they were not yet covered in
dirt. At least one cell phone was identified as belonging to Rubio

. Officers were
unable to download content from the other cell phone in the trench because it had been “factory reset,” meaning that its contents had been “wiped out.” Sergeant Rosemary Sharp , a detective with the Midland Police Department, attempted to speak with Rubio ’s neighbors. One of the apartments that Sergeant Sharp visited belonged to Appellant and Joyce Jennings. Sergeant Sharp could see movement through the apartment blinds, but no one answered the door when officers initially tried to make contact. However, officers were admitted to and search ed Appellant and Jennings’ s apartment later that day

. Officers did not find anything of

note during this search

. On October 22 , the day after Appellant and Jennings’ s apartment was searched, Jennings contacted the police department

. Sergeant Shar p met Jennings

at her and Appellant’s apartment . Jennings invited Sergeant Sharp into the apartment and began “pointing out” things that were not in the apartment when it was searched the day before. Jennings pointed out clothing and a pair of black shoe s4 she claimed belonged to Appellant, a “charger” in the bathroom that appeared to have blood on it, and a “corner piece of a clear plastic baggie” indicative of narcotics packaging that also appeared to have blood on it. Crime scene investigator Payne

pro cessed Appellant’s apartment and collected a pair of gray sweatpants, a pair of black Nike Air Jordan shoes, a black and white “baseball shirt,” a left white Nike tennis shoe, a black Motorola phone, a white “wall plug, or phone charger,” the torn

corner o f a plastic bag gie , a pair of safety glasses, and a white T

- shirt. Payne also took custody of items officers ha d collected from Appellant’s apartment , including a gray hooded sweatshirt and a pair of gray pants. While Sergeant Sharp was at Appellant’s apartment , she was notified that Appellant had arrived at the police department ostensibly “wanting to turn himself
in.” Sergeant Sharp was present when another detective interviewed Appellant. Sergeant Sharp testi fied that Appellant was “smilin g and smirking” whenever he
was asked about Rubio being stabbed. Appellant said that he was not involved in
Rubio ’s murder and that he did not stab Rubio

. When Rubio ’s autopsy was performed on Tuesday, October 23, officers learned that Rubio had been shot rather than stabbed. Sergeant Sharp later concluded that Appellant was smiling during his interview because “he was being honest, he did not stab [ Rubio ] .” Sergeant Sharp also testified that Appellant lied when he said that he was wearing the same clothing during his interview as he was wearing on October 21 ; video footage from a local business taken on October 21 showed Appellant wearing different clothing

. Dr. Tasha Greenberg of the Tarrant County Medical Examiner’s Office performed an autopsy on Rubio’s body. Her external examination revealed an injury

on Rubio’s torso and right hand. She determined that the torso injury was a gunshot

entrance wound and the hand injury was a grazed gunshot wound. The bullet that
entered Rubio’s torso , went into his abdomen, through his liver and inferior vena5 cava, and into the second lumbar vertebra through his spinal cord. Dr. Greenberg testified that the gunshot wou nd to the abdomen was the cause of death. Appellant confirmed during his interview that the black shoes found in his apartment belonged to him . Sergeant Sharp testified that officers were interested in the shoes because the pattern on the soles of the sho es were similar to the pattern made by the partial shoeprint found in blood in Rubio ’s apartment. Additionally,
Rubio ’s friend, Virgil io Martinez, testified that he saw Appellant standing outside
Rubio ’s apartment smoking a cigarette on October 14. Sergea nt Sharp testified that another neighbor of Rubio ’s , Michael Jackson, was a person of interest during the murder investigation . Officers searched Jackson’s apartment and noted that there was blood and po ssibly cocaine in the apartment. While conducting surveillance at the Midland Square Apartments complex, Sergeant Sharp saw Jackson exit his apartment with something in his hands, approach a vehicle, speak to whoever was inside the vehicle, and return to his

ap artment without the item. Officers were unable to stop the vehicle and recover the item, but Sergeant Sharp was interested in the interaction because Appellant had been in Jackson’s apartment on October 21. Officers subsequently searched Jackson’s apartm ent and noted the presence of blood throughout the apartment. Jackson was found hiding in a closet. Despite this, there was no DNA evidence connecting Jackson to Rubio ’s death , and Jackson was never arrested in connection
with Rubio ’s murder.
Brandon M ount, a forensic biology analyst with the Texas Department of Public Safety’s ( DPS ) Crime Lab in Lubbock, received several items of evidence for testing. A fter a T

- shirt , pair of gray sweatpants, and the black shoes belonging to Appellant tested presumpti vely positive for blood, Mount swabbed each item for DNA analysis. Mount testified that the wall charger and plastic bag gie also tested presumptively positive for blood. Mount also s wabbed the two cell phones6 recovered from the trench for DNA

. Mount removed the back cover of each phone and swabbed around the area where the SIM card would have been had they not been
removed. Charity Hubbard, a forensic scientist with the DPS Crime Lab in Lubbock , testified about the results of the DNA testing tha t had been completed

. She testified
that one of the blood stains on Appellant’s shoes came from a single individual, that it was consistent with Rubio’s DNA, and that the likelihood of it being from an unknown person was one in 758 octillion. With respec t to Rubio’s cell phone, a DNA profile was identified on it to be a mixture of three individuals, that Jennings’s DNA could not be excluded as a contributor of DNA in the profile, and the likelihood
of the DNA being from three unknown individuals was one in 4.19 million. With respect to the other cell phone that the police located along with Rubio’s cell phone, a DNA profile was identified on it to be a mixture of three individuals, that Appellant’s DNA cou ld not be excluded as a contributor of the DNA in the pro file , and the likelihood of the DNA being from three unknown individuals was one in 837 quintillion. Neither Appellant’s nor Jennings’ s DNA was present in Rubio ’s apartmen t. Ultimately, Appellant w as arrested for Rubio ’s murder , and Jennings was arrested for tampering with evidence connected to Rubio ’s murder. Analysis In his first issue, Appellant contends that the evidence at trial was insufficient to support the jury’s guilty verdict for murde r because “there was plainly reasonable doubt” raised by the evidence. We review a challenge to the sufficiency of the evidence, regardless of whether it is denominated as a legal or factual sufficiency challenge, under the standard of review set forth in Jackson v. Virginia , 443 U.S.
307 (1979). Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v.
State , 337 S.W.3d 286, 288

– 89 (Tex. App.

— Eastland 2010, pet. ref ’ d). Under the
Jackson standard, we review all of the evidence in the light most favorable to the7 verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson , 443 U.S. at 319; Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the evidence admitted

at tr ial, including pieces of evidence that may have been improperly admitted. Winfrey v. State , 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder ’ s role as the sole judge of t he witnesses ’ credibility and the weight their testimony is to be
afforded. Brooks , 323 S.W.3d at 899. This standard accounts for the factfinder ’ s duty to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from b asic facts to ultimate facts. Jackson , 443 U.S. at 319; Clayton , 235 S.W.3d at 778. When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer
to that determination. Jacks on , 443 U.S. at 326; Clayton , 235 S.W.3d at 778. It is not necessary that the evidence directly prove the defendant ’ s guilt; circumstantial evidence is as probative as direct evidence in establishing a
defendant ’ s guilt, and circumstantial evidence can alone be sufficient to establish guilt. Carrizales v. State , 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Each fact need not point directly and inde pendently to guilt if the cumulative force of all incriminating circumstances is sufficient to support the conviction. Hooper , 214 S.W.3d at 13. Because evidence must be considered cumulatively, appellate courts are not permitted to use a “divide and con quer” strategy for evaluating the sufficiency of the
evidence. Murray v. State , 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Instead, appellate courts must consider the cumulative force of all the evidence. Villa v.
State , 514 S.W.3d 227, 232 (Tex. Crim. App. 2017).8 To determine whether the State has met its burden under Jackson to prove a defendant ’ s guilt beyond a reasonable doubt, we compare the elements of the crime as defined by the hypothetically correct jury charge to the evidence adduced at trial.
Thomas v. State , 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the
Stat e ’ s burden of proof or restrict the State ’ s theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. The law as authorized by the indictment means the statutory elements of the charged offense as
modif ied by the factual details and legal theories contained in the charging
instrument. See id. When, as here, the trial court ’ s charge authorized the jury to convict the defendant on more than one theory, the verdict of guilt will be upheld if the evidence is sufficient on any theory authorized by the charge. See Guevara v.
State , 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (citing Rabbani v. State , 847 S.W.2d 555, 558 (Tex. Crim. App. 1992)).
Count I of the final re

- indictment charged Appellant as follows: WILLIE OTEY HENDERSON, hereinafter styled Defendant, on or about 21st day of October, 2018, and before the presentment of this indictment, in the County and State aforesaid, did then and there intentionally and knowingly cause the death of MICHAEL RUBIO, an individual, by shooting the said MICHAEL RUBIO with a firearm, a deadly weapon, [ A ] nd the Grand Jurors upon their oaths afo resaid do further present in and to said Court that the Defendant on or about the 21st day of October, 2018, and before the presentment of this indictment, in the County and State aforesaid intending to cause serious bodily injury to an individual, MICHAEL RUBIO, did then and there commit an act clearly dangerous to human life, to

- wit: shooting a firearm at and in the direction of the said MICHAEL RUBIO, thereby causing the death of MICHAEL RUBIO.9 The two methods of committing murder alleged in the indictme nt are not separate offenses but, rather, alternative methods of committing the same offense. Walter v.
State , 581 S.W.3d 957, 968 (Tex. App.

— Eastland 2019, pet. ref’d) (citing Smith v.
State , 436 S.W.3d 353, 378 (Tex. App.

— Houston [14th Dist.] 2014, pet. ref’d) ) ; see P ENAL § 19.02(b)(1)

- (2).
In addition to charging Appellant under the two different theories of murder presented in the final re

- indictment , the trial court’s charge allowed the jury to convict Appellant either as a primary actor or as a p arty with Jennings or “a person unknown.” Under Section 7.01 of the Penal Code, “[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 by both.” P ENAL § 7.01(a) (West 2021 ); s ee Adames v. State , 353 S.W.3d 854, 862 (Tex. Crim. App. 2011). The trial court’s charge permitted the jury to find that Appellant was criminally responsible for the conduct of Jennings or a person unknown und er Section 7.02(a)(2) of the Penal Code. See P ENAL § 7.02(a)(2). This statute provides that “[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

o ffense, he solicits, encourages, directs, aids, or attempts to aid the other person to
commit the offense.” Id. ; see Adames , 353 S.W.3d at 862. Appellant directs his sufficiency challenge on multiple aspects of the evidence
in this case. He i nitially asserts that there is no evidence that Appellant owned or possessed a firearm or used or discharged a firearm ; that he asked or solicited another person to shoot Rubio or that he assisted whoever shot Rubio ; and that there is no
evidence that he t ampered with Rubio ’s body. Appellant also contends that the police lost evidence in the case and did not handle items of evidence properly , and
that Rubio was a drug dealer that may have aggrieved either his supplier or his

customers.10 We first note that w hen conducting an evidentiary review, “[w]e do not review the sufficiency of the police investigation; we review the evidence presented at trial.” Quinonez v. State , No. 06

- 07

- 00016

- CR, 2007 WL 2608833, at *4 (Tex. App.

— Texarkana Sept. 12, 2007, pet. ref ’ d) (mem. op., not designated for publication) ; see Espinoza v. State , No. 11

- 19

- 00232

- CR, 2022 WL 3903774, at *5 (Tex. App.

— Eastland Aug. 31, 2022, pet. ref’d) (mem. op., not designated for publication)

. “[W]e do not consider what evidence the State coul d have or even should have presented.” Quinonez , 2007 WL 2608833 at *4

. W e also do not speculate about the evidence that the State did not present. McLemore v. State , No. 05

- 15

- 00160

- CR, 2015 WL 9591398, at *3 (Tex. App.

— Dallas Dec. 31, 2015, no pet.) ( mem. op., not designated for publication) (citing Merritt v. State , 368 S.W.3d 516, 526 (Tex. Crim. App. 2012)) ; see Espinoza , 2022 WL 3903774 at *5

. Further, we do not usurp the role of the factfinder by factoring into our sufficiency analysis an alternative hypothesis inconsistent with the guilt of the accused. Jenkins v. State , 493 S.W.3d 583, 601 (Tex. Crim. App. 2016). There is ample circumstantial evidence that supports Appellant ’ s conviction. The State presented evidence that a (1) blood stain was present on Appellant’s shoes (2) that Rubio could not be excluded as the contributor of the DNA profile connected to the blood stain, and (3) the likelihood of it be ing contributed by another individual

was one in 758 octillion. A shoeprint consistent with those shoes was f ound in Rubio’s apartment near his body. This evidence would allow a rational jury to infer
and conclude that Appellant was present in Rubio’s ap artment at the time that he
was murdered and that Appellant was an active participant in the murder. Additionally, Appellant could not be excluded as a contributor of DNA found on a cell phone located next to Rubio’s cell phone, and Jennings could not be excluded as a contributor of DNA found on Rubio’s cell phone. The SIM cards for both phones had been removed and one phone had been factory reset. These items11 of evidence permitted the jury to infer that Appellant participated in the effort to
conceal h is involvement in Rubio’s murder. Also, Appellant was seen standing
outside Rubio ’s apartment a few days before his death. Finally, testimony was presented that Appellant’s demeanor during his interview indicated that he knew
Rubio was not stabbed. Reviewing courts are required to consider the combined force of all of the
evidence. Merritt , 368 S.W.3d at 526 (citing Smith v. State , 332 S.W.3d 425, 442 (Tex. Cri m. App. 2011) ). Viewed in the light most favorable to the verdict, we
conclude that there is sufficient evidence from which a rational trier of fact could have concluded beyond a reasonable doubt that Appellant committed the murder of
Rubio as either the primary actor or as a party

. See Jackson , 443 U.S. at 319. We overrule Appellant’s first issue. In his second issue, Appellant contends that the trial court erred when it
included a law

- of

- parties instruction in its charge. We review a claim of jury charge error using the procedure set out in Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). See State v. Ambrose , 487 S.W .3d 587, 594 (Tex. Crim. App. 2016). Our first duty in analyzing a jury charge issue is to de cide whether error
exists. Arteaga v. State , 521 S.W.3d 329, 333 (Tex. Crim. App. 2017) (citing
Barrios v. State , 283 S. W .3d 348, 350 (Tex. Crim. App. 2009)). If error exists, we
must determine whether the error caused sufficient harm to warrant reversal

. Id. If a timely objection was lodged at trial, reversal is required if the error resulted in
“some harm” to the defendant. Elizondo v. State , 487 S.W.3d 185, 204 (Tex. Crim. App. 2016). Appellant objected to the inclusion of the instruction on the law of parties in
the trial court ’ s charge based on his contention that there was no evidence to support
its submission. Appellant maintains on appeal that the State presented “zero evidence” that Appellant and Jennings had any common u nderstanding or design.12 Appellant does not specifically assert that the trial court’s error caused him some
harm but asserts that the State’s request for a law

- of

- parties instruction was “an attempt to gain a conviction without sufficient proof.” Generally, the trial court may instruct the jury on the law of parties if “there is sufficient evidence to support a jury verdict that the defendant is criminally responsible under the law of parties.” Ladd v. State , 3 S.W.3d 547, 564 (Tex. Crim. App. 199 9). “Regardless of whether it is pled in the charging instrument, liability as a party is an available legal theory if it is supported by the evidence.” In re State
ex rel. Weeks , 391 S.W.3d 117, 124 (Tex. Crim. App. 2013). The State does not have to pr ove it is correct regarding the defendant ’ s participation as a party; instead, the State must only show that the evidence raises the issue to be entitled to its
submission. Id. at 125. Thus, a trial court errs by submitting an instruction under
the law o f parties if the evidence adduced at trial would not support a jury verdict under the law of parties. Ladd , 3 S.W.3d at 564. The jury is entitled to consider the events that took place before, during, and
after the commission of the crime. See Paredes v. State , 129 S.W.3d 530, 536 (Tex. Crim. App. 2004); Goff v. State , 931 S.W.2d 537, 545 (Tex. Crim. App. 1996). “There must be sufficient evidence of an understanding and common design to
commit the offense.” Gross v. State , 380 S.W.3d 181, 186 (Tex. Crim. App. 2012) (citing Guevara , 152 S.W.3d at 49). “Each fact need not point directly to the guilt of the defendant, as long as the cumulative effect of the facts are sufficient to support the conviction under the law of part ies.” Id. (citing Guevara , 152 S.W.3d at 49). Mere presence of a person at the scene of a crime

— either before, during, or after the
offense

— or even flight from the scene, without more, is insufficient to sustain a conviction as a party to the offense; ho wever, combined with other incriminating evidence, it may be sufficient to sustain a conviction. Thompson v. State , 697 S.W.2d 413, 417 (Tex. Crim. App. 1985); accord Gross , 380 S.W.3d at 186.13 Additionally, allegations that a party is guilty under the la w of parties need not be specifically pleaded in the indictment. See Barrera v. State , 321 S.W.3d 137, 144 n.1 (Tex. App.

— San Antonio 2010, pet. ref ’ d). As discussed above, a jury could have rationally concluded that Appellant was present at the scene of the crime, which is a relevant circumstance for proving party

status. See Medellin v. State , 617 S.W.2d 229, 231 (Tex. Crim. App. 1981). While Appellant asserts that there is no evidence of an understanding between Appellant and Jennings, Appellant and J ennings lived together, and both Appellant and Jennings separately approached the police after evidence appeared in their apartment the day after it was searched. E vidence was present ed that connect ed Appellant to
Rubio in the form of a DNA profile consistent with Rubio’s DNA being found on Appellant’s shoes. Further, a DNA profile consistent with Jennings’s DNA was
found on Rubio’s cell phone and a DNA profile consistent with Appellant’s DNA
was found on a cell phone located with Rub io’s cell phone. This evidence ties Jennings and Appellant together with respect to Rubio’s murder. Sergeant Bernal
testified that the state of Rubio ’s apartment indicated that someone was “looking for something.” Rubio ’s brothers testified that Rubio s old illegal drugs, and a plastic bag gie consistent with narcotics packaging was found in Appellant ’s and Jennings’ s apartment

. Accordingly, t he State presented sufficient evidence from which the jury
could have rationally inferred that Appellant and Jenn ings were both involved in
Rubio ’s murder

. See In re State ex rel. Weeks , 391 S.W.3d at 125. B ecause the evidence at trial could have supported a jury verdict under the law of parties, the trial court did not err in including the instruction in its charge. See Ladd , 3 S.W.3d at
564. We overrule Appellant’s second issue.14 This Court’s Ruling We affirm the judgment of the trial court.

JOHN M. BAILEY
CHIEF JUSTICE

January 25 , 20 2 4 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: Bailey , C.J., Trotter , J

. , a nd Williams , J.