Reynaldo Palomo v. State ( 2018 )

AFFIRMED as modified; and Opinion Filed January 31, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-01459-CR
REYNALDO PALOMO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F-1575896-K
MEMORANDUM OPINION
Before Justices Lang, Brown, and Whitehill
Opinion by Justice Brown
A jury convicted appellant Reynaldo Palomo of capital murder, and the trial court assessed
punishment at life without parole. In three issues, appellant contends the evidence was insufficient
to support his conviction because it did not prove (1) his identity as the perpetrator of the murder,
(2) that he intentionally murdered the complainant, or (3) a robbery. After reviewing the record,
we overrule these issues. In two additional issues, appellant seeks modification of the judgment
to accurately reflect the date judgment was entered and the offense for which he was convicted.
We sustain these issues, and modify the judgment. We affirm the trial court's judgment as
modified.
BACKGROUND
In June 2015, Mike Albanna and his girlfriend Sara Ewton ran two adjacent game rooms
in a small strip mall in Dallas, Texas. During the early hours of June 29, 2015, Albanna was
working in one of the game rooms (Game Room A). Ewton and a number of other people,
including Maria del Carmen Velasquez and Leighann Palmer, were in the second game room
(Game Room B).
Appellant, Richard Cardoso, and Miguel Machado arrived at Game Room A together in
appellant’s pickup truck. Machado knew Cardoso well, but had only seen appellant a few times.
Before they arrived, appellant “hit the meth pipe.” Appellant stopped Cardoso from doing the
same, saying “wait till after.” It gave Machado a “weird feeling.”
Albanna knew both appellant and Cardoso as customers, but did not know Machado. The
three men began to play eight-liner machines. After all of the other customers departed Game
Room A, appellant blocked the front door and pulled a gun out. According to Albanna, appellant
pointed the gun at him and said, “I’m here to rob you” and “I have to have some money.” Albanna
noticed Cardoso had moved into the game room’s office and was “digging through everything.”
Albanna told appellant that he did not have any money and slowly walked toward Game Room
A’s back door, where he turned and ran to the front door of Game Room B. Albanna was scared
appellant might kill him.
Machado testified to a slightly different version of events in Game Room A. He heard
appellant and Albanna having a conversation and started paying attention after Albanna said “are
you crazy.” According to Machado, appellant said “something about, let me just borrow $1500,”
and Albanna responded that he “could get 50 or 60 people on ya’ll.” Machado had not heard what
the men said earlier, but noticed that appellant was holding a gun. Machado froze, believing it to
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be an attempted robbery. Although he had lost sight of Cardoso, the door to the office area was
open and Machado believed Cardoso was in the office. Machado observed Albanna slowly and
nervously backing away from appellant toward the game room’s back door and then running out.
Albanna ran around to the front of the strip mall and banged on Game Room B’s door.
Velasquez was near the door, and she and several other individuals exited to see what was going
on. Meanwhile, appellant, Cardoso and Machado emerged from the front door of Game Room A.
Machado testified that Albanna, standing to their left, threw a cinder block towards them.
Machado ran to the truck. Although he did not see appellant or Cardoso shooting, he heard
appellant fire a number of gunshots from the front of the game rooms and Cardoso fire “quite a
few” shots from near the truck. Machado also observed another person in the parking lot in a
shooting stance, bobbing and weaving, but did not hear that person firing gunshots.
Albanna testified appellant and Cardoso were shooting at him from approximately 15 feet
away. Appellant fired multiple shots while standing on the sidewalk near Game Room A’s front
door. Cardoso fired multiple shots as he moved toward the pickup truck. Albanna could see
bullets coming toward him; he was shot eleven times. Complainant Velasquez, approximately
three feet from Albanna, also was shot and died from a single gunshot wound.
Ewton heard the shooting start immediately after Game Room B’s front door was opened.
She did not know how many shots she heard, but thought the shooting “wasn’t going to end” and
“everybody was going to die that day.” She tried to help Albanna as gunshots were still being
fired. He was shot again as Ewton tried to drag him in Game Room B, and his blood splattered on
her leg.
Leighann Palmer was in Game Room B at the time of the shooting and, based on the
amount of gunfire, thought “they were in there to kill everybody . . . .” She had gone to Game
Room A to get some change approximately 30 to 45 minutes before the shooting began. She knew
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appellant, and he was not in Game Room A at the time. Albanna was planning to close Game
Room A then, so Palmer believed he would not have let anyone else enter. Palmer acknowledged,
however, that she had no idea whether appellant arrived after she left Game Room A.
After the shooting, appellant, Cardoso and Machado fled in appellant’s pickup truck. As
they drove away, Cardoso threw something out his window. Police later recovered a 40-caliber
handgun from the same area, and DNA analysis confirmed that Cardoso was a major contributor
of DNA on the handgun. The men abandoned the truck at a nearby intersection and fled on foot.
Cardoso and Machado ran one direction; appellant ran the opposite way. Machado and Cardoso,
wearing an empty holster, were arrested after hiding in a nearby house. Appellant was arrested a
few days later.
Police recovered six fired 40-caliber cartridge casings from the strip center parking lot and
twelve fired 9mm cartridge casings on the sidewalk in front of the game rooms where Albanna
observed and Machado heard appellant shooting a weapon. A firearms examiner testified that all
of the 40-caliber cartridge casings were fired from the recovered handgun and all of the 9mm
cartridge casings were fired from the same unknown 9mm handgun.
Detective Scott Sayers interviewed Albanna after Albanna was released from the hospital.
Sayers testified that Albanna identified appellant from a six-photo line-up as the shooter who
pointed a gun at him both inside Game Room A and outside in front of the game rooms. Sayers
also interviewed Machado, who denied knowing appellant. Machado also first told Sayers that
Albanna and others from Game Room B shot at him, Cardoso, and appellant as they emerged from
Game Room A. Machado later changed his story, saying that Albanna actually threw a cinder
block. Sayers testified that it was common for suspects to initially minimize their role in an
incident and later provide more information. After speaking with both Albanna and Machado,
Sayers concluded that their stories aligned.
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Appellant was charged with capital murder under section 19.03(a)(2) of the penal code.
See TEX. PENAL CODE ANN. § 19.03(a)(2) (West 2011). The indictment alleged appellant
intentionally caused the death of Velasquez by shooting her with a firearm, a deadly weapon, in
the course of committing and attempting to commit the offense of robbery of Albanna. Following
a trial, the jury found appellant guilty of capital murder. The trial court assessed punishment of a
life sentence without the possibility of parole.
APPLICABLE LAW
To review the sufficiency of evidence to support a conviction, we consider all of the
evidence in the light most favorable to the jury's verdict and decide whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979); Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.
2011). We defer to the jury as factfinder; it is the sole judge of the weight and credibility of the
evidence and resolves any conflicts in that evidence. Adames, 353 S.W.3d at 860; Jones v. State,
944 S.W.2d 642, 647 (Tex. Crim. App. 1996). We determine whether the jury’s necessary
inferences are reasonable based on the “cumulative force of all of the evidence.” Adames, 353
S.W.3d at 860.
We measure the sufficiency of the evidence by the elements of the offense as defined by a
hypothetically correct jury charge for the case. See Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997). A hypothetically correct charge accurately sets out the law, is authorized by
the indictment, does not unnecessarily increase the prosecution’s burden of proof or restrict its
theories of liability, and adequately describes the particular offense for which the defendant was
tried. Id. A person commits capital murder if he intentionally causes the death of an individual in
the course of committing or attempting to commit robbery. TEX. PENAL CODE ANN. § 19.03(a)(2).
A person commits robbery if, in the course of committing theft, and with intent to obtain or
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maintain control of someone else’s property, he intentionally, knowingly, or recklessly causes
bodily injury to another. Id. § 29.02(a) (West 2011). A person commits theft if he unlawfully
appropriates property with the intent to deprive the owner of it. Id. § 31.03(a) (West 2011).
IDENTITY
In his first issue, appellant argues the evidence is insufficient to prove his identity as the
perpetrator of the offense. The prosecution must prove beyond a reasonable doubt that the
defendant is the person who committed the offense charged. Miller v. State, 667 S.W.2d 773, 775
(Tex. Crim. App. 1984). Identity may be proved by “either direct or circumstantial evidence,
coupled with all reasonable inferences from that evidence.” Gardner v. State, 306 S.W.3d 274,
285 (Tex. Crim. App. 2009). The testimony of a single eyewitness may be sufficient evidence to
identify a defendant as the perpetrator. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App.
1971).
The evidence shows that Albanna was familiar with and recognized appellant when
appellant entered Game Room A. Thereafter, appellant brandished a gun in Game Room A and
subsequently fired the gun in the direction of Albanna and Velasquez outside the game rooms.
Following Albanna’s release from the hospital, he positively identified appellant in a photo line-
up as the individual who had pointed the gun inside Game Room A and as a shooter outside the
game rooms. At trial, Albanna again identified appellant as the perpetrator. Machado also
identified appellant at trial as the individual who pulled the gun in Game Room A and subsequently
fired shots outside the game rooms.
Appellant, however, contends neither Albanna nor Machado were credible witnesses. He
concludes Albanna was untruthful because there was evidence to dispute his testimony at trial
regarding game room ownership and an individual known as “Mexican Mike,” whom witnesses
testified had broken into a gambling machine a few days before the offense. Appellant also
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maintains Albanna’s identification was unreliable because Albanna testified he could not “clearly”
see the second and third man emerging from Game Room A, could not “see anything except
bullets” when he first got shot, could not see when the police arrived because he was on the ground,
and “wasn’t 100 percent” after he was shot. According to appellant, Machado was not a credible
witness because he was under indictment for the same offense. Finally, appellant cites the lack of
physical evidence to establish his identity as the perpetrator.
Both Albanna and Machado, eyewitnesses to the offense, identified appellant as the
perpetrator, and their testimony is sufficient evidence to support appellant’s conviction. 1 See
Aguilar, 468 S.W.2d at 77. The jury heard all of Albanna’s testimony and the fact that Machado
also had been indicted for capital murder; it was free to accept or reject the evidence, including
accepting some portions and rejecting other portions of a particular witness’s testimony. See
Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). In doing so, the jury concluded
that appellant was the person who committed the offense. No additional physical evidence was
needed to corroborate the jury’s finding. See Aguilar, 468 S.W.2d at 77. Viewing all the evidence
in the light most favorable to the prosecution, we conclude a rational factfinder could have
concluded that appellant was indeed the perpetrator of Velasquez’s murder. Accordingly, we
overrule appellant’s first issue.
INTENT
In his second issue, appellant argues the evidence is insufficient to prove he intended to
murder Velasquez. He contends there was no evidence of his intent to murder anyone other than
possibly Albanna and, because the jury was not instructed on transferred intent, the prosecution
1
The jury charge properly instructed the jury that it could not convict appellant based solely on the testimony of an accomplice unless the
accomplice’s testimony was corroborated by other evidence tending to connect appellant with the offense. See TEX. CODE CRIM. PROC. ANN. ART.
38.14 (West 2011).
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could not rely on that theory to support his conviction. See TEX. PENAL CODE ANN. § 6.04(b)(1)
(West 2011).
A person acts intentionally with respect to a result of his conduct when it is his conscious
objective or desire to cause the result. Id. § 6.03(a) (West 2011). Intent is usually proven by
circumstantial evidence. Trevino v. State, 228 S.W.3d 729, 736 (Tex. App.—Corpus Christi 2006,
pet. ref’d). The jury may infer intent from a defendant’s acts, words and conduct as well as the
means used and the wounds inflicted. Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App.
1995); Womble v. State, 618 S.W.2d 59, 64 (Tex. Crim. App. 1981). A jury may infer specific
intent to kill from use of a deadly weapon in a deadly manner unless it is reasonably apparent that
death or serious injury could not result from the use of the weapon. Adanandus v. State, 866
S.W.2d 210, 215 (Tex. Crim. App. 1993); see also Jones, 944 S.W.2d at 647; Godsey v. State, 719
S.W.2d 578, 580-81 (Tex. Crim. App. 1986). And, if a deadly weapon is fired at close range and
death results, the law presumes an intent to kill. Womble, 618 at 64-65; Trevino, 228 S.W.3d at
736. A firearm is a deadly weapon. TEX. PENAL CODE ANN. § 1.07(a)(17) (West 2011).
The jury heard evidence that appellant fired a number of gunshots in front of the game
rooms and police recovered 18 fired shell casings at the scene, twelve of which were fired from
the same 9mm handgun in front of the game rooms. Albanna could see the bullets coming towards
him and, standing 15 feet from appellant, suffered 11 gunshot wounds. Velasquez, approximately
three feet from Albanna, also was shot and died from a single gunshot wound.
To show he had no intent to kill Velasquez, appellant argues that he “was likely unaware”
people were in Game Room B and “[t]he shooter was actively firing upon Albanna when the
complainant stepped into the fire.” Ewton, however, testified that the shooting began just after
Game Room B’s front door was opened so Velasquez and others could see what was happening.
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Indeed, Albanna was shot once as Ewton tried to drag him in Game Room B. And Parker, a
defense witness, thought “they were in there to kill everybody . . . .”
The jury could have reasonably inferred appellant's intent to kill Velasquez from
eyewitness testimony that he fired a large number of rounds from a handgun, a deadly weapon per
se, in the direction of multiple people at close range and the fact that two of those people were
shot, resulting in one's death. See, e.g., Trevino, 228 S.W.3d at 737-38 (jury could reasonably
infer defendant specifically intended to kill either or both vehicle occupants when he fired semi-
automatic weapon into vehicle); see also Vuong v. State, 830 S.W.2d 929, 934 (Tex. Crim. App.
1992) (use of deadly weapon in a tavern filled with people is sufficient to support reasonable
inference of specific intent to kill); Medina v. State, 7 S.W.3d 633, 636-37 (Tex. Crim. App. 1999).
Considering all of the evidence in the light most favorable to the verdict, we conclude there is
sufficient evidence to prove beyond a reasonable doubt that appellant had the required intent to
kill Velasquez.
The transferred intent theory may be properly applied when a defendant fires a weapon at
an intended victim in a group of other people; the offense is murder whether the intended victim
is killed or a different person in the group is killed. See TEX. PENAL CODE ANN. § 6.04(b)(2);
Trevino, 228 S.W.3d at 737; Pettigrew v. State, 999 S.W.2d 810, 812-13 (Tex. App.—Tyler 1999,
no pet.). The prosecution did not argue the transferred intent theory at trial, and the jury was not
instructed on the theory. As we have concluded that the jury could have reasonably inferred
appellant’s intent to kill Velasquez from the evidence presented at trial, we need not consider
whether the evidence also was sufficient to support his conviction under a hypothetically correct
jury charge including a transferred intent instruction. Accordingly, we overrule appellant's second
issue.
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ROBBERY
In his third issue, appellant argues there is no evidence of an underlying robbery to support
the capital murder conviction. Citing Machado’s testimony, appellant argues there was no
evidence appellant “spoke or threateningly brandished a gun in such a way as to indicate [he]
intended to obtain [Albanna’s] property.” Appellant also notes that no money was actually taken
from Albanna.
Evidence is sufficient to prove an underlying robbery for purposes of a capital murder
conviction if it shows the defendant formed an intent to obtain or maintain control of property
before or contemporaneously with the murder. Shuffield v. State, 189 S.W.3d 782, 791 (Tex. Crim.
App. 2006); Lincecum v. State, 736 S.W.2d 673, 680 (Tex. Crim. App. 1987). The prosecution
does not have to prove the defendant completed the theft. Young v. State, 283 S.W.3d 854, 862
(Tex. Crim. App. 2009); Wolfe v. State, 917 S.W.2d 270, 275 (Tex. Crim. App. 1996). If there is
evidence from which the jury rationally could conclude beyond a reasonable doubt “that the
defendant formed the intent to obtain or maintain control of the victim's property either before or
during the commission of the murder, then the [prosecution] has proven that the murder occurred
in the course of robbery.” Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995).
Machado testified he observed appellant holding a handgun while appellant and Albanna
had words. Machado heard appellant say something about borrowing $1500, to which Albanna
indicated he could get “50 or 60 people on ya’ll.” Machado nevertheless froze because he believed
he was seeing an attempted robbery. The jury also heard Albanna’s testimony that appellant
blocked the front door of Game Room A, pointed a gun at Albanna, and said, “I’m here to rob
you.” At the time, Cardoso had entered the office and was “digging through everything.” Albanna
further testified that he ran around to Game Room B to “get away from them” because they were
“trying to rob me.”
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Although Albanna’s and Machado’s versions of events were not identical, a rational
factfinder likewise could have reasonably inferred that appellant brandished a gun and spoke
threateningly in a manner indicating he intended to take money from Albanna. The State did not
have to prove appellant actually completed the theft in order to establish the underlying offense.
See Young, 283 S.W.3d at 862. Reviewing the evidence in the light most favorable to the verdict,
there is sufficient evidence of an underlying robbery to support appellant’s conviction. We
overrule appellant’s third issue.
JUDGMENT
In his fourth and fifth issues, appellant seeks correction of the trial court’s judgment to
accurately reflect the date the judgment was entered and the offense for which he was convicted.
If a record contains the necessary information, we may modify an incorrect judgment to correct
clerical errors. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993);
Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref’d). Here, the
judgment incorrectly reflects December 6, 2016 as the date judgment was entered, sentence was
imposed, and sentence was to commence. The trial court, however, signed the judgment on
December 9, 2016. The judgment also incorrectly recites that appellant was convicted of “capital
murder/terrorist threat” despite the jury convicting appellant of capital murder as charged in the
indictment. Accordingly, we sustain appellant’s fourth and fifth issues and modify the judgment
to reflect the correct date of judgment and sentencing as December 9, 2016 and the correct offense
as capital murder.
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We affirm the trial court’s judgment as modified and order the trial court to enter an
amended judgment reflecting these modifications.
/Ada Brown/
ADA BROWN
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
161459F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
REYNALDO PALOMO, Appellant On Appeal from the Criminal District Court
No. 4, Dallas County, Texas
No. 05-16-01459-CR V. Trial Court Cause No. F-1575896-K.
Opinion delivered by Justice Brown;
THE STATE OF TEXAS, Appellee Justices Lang and Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
We REPLACE “December 6, 2016” with “December 9, 2016” as the date
judgment was entered, sentence was imposed, and sentence was to commence and
REPLACE “capital murder/terroristic threat” with “capital murder” as the
offense.
As modified, the judgment is AFFIRMED.
Judgment entered this 31st day of January, 2018.
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