NUMBER 13-05-00007-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

ARON GARZA VEGA,                                                                       Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

    On appeal from the 92nd District Court of Hidalgo County, Texas.

                         DISSENTING OPINION

                Before Justices Hinojosa, Yañez, and Castillo

                            Dissenting Opinion by Justice Hinojosa

I respectfully dissent because I disagree with the majority=s holding that the evidence is factually insufficient to support the jury=s finding that appellant, Aron Garza Vega, is guilty of the offense of capital murder.

In a factual sufficiency review, we review all the evidence in a neutral light and determine whether evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond‑a‑reasonable‑doubt standard could not have been met.  Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004).  Our neutral review of all the evidence, both for and against the challenged elements, looks to determine whether proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or whether proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  See Zuniga v. State, 144 S.W.3d 477, 484‑85 (Tex. Crim. App. 2004).  A proper factual sufficiency review must consider the most important evidence that the appellant claims undermines the jury's verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).  However, we approach a factual sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder.  Johnson v. State, 23 S.W.3d 1, 6‑7 (Tex. Crim. App. 2000).  Every fact need not point directly and independently to the accused's guilt.  Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981).  A conclusion of guilt can rest on the combined and cumulative force of all the incriminating circumstances.  Id.

The majority correctly states that the State had the burden of producing evidence showing that appellant acted as a party or principal in the murder while in the course of committing robbery.  The majority holds the evidence is factually insufficient to establish culpability as a party under section 7.02(a)(2) of the penal code.  See Tex. Pen. Code Ann. ' 7.02(a)(2) (Vernon 2003).

However, the jury was also instructed that it could find appellant guilty of capital murder as a co-conspirator under section 7.02(b) of the penal code, and the majority=s opinion fails to address the factual sufficiency of the evidence under section 7.02(b).  Section 7.02(b) of the Texas Penal Code provides:

If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out the conspiracy.

Tex. Pen. Code Ann. ' 7.02(b) (Vernon 2003).

Appellant contends the evidence is factually insufficient under section 7.02(b) because (1) the conspiracy to rob never contemplated murder, (2) appellant was not present at the scene of the shooting, and (3) the spontaneity of the killing outweighs any evidence of guilt.

Section 7.02(b) does not require that the State prove a defendant contemplated or intended the victim=s murder.  In fact, 7.02(b) specifically states that intent is not required.  Furthermore, a defendant need not have been physically present in order to be held responsible as a party under section 7.02(b).  See Longoria v. State, 154 S.W.3d 747, 755 n.6 (Tex. App.BHouston [14th Dist.] 2004, pet. ref=d) (affirming capital murder conviction under section 7.02(b) where defendant conspired to commit robbery that resulted in the murder of a deputy, but defendant was not present at the scene of the murder).  Finally, it should be anticipated that a murder would occur where evidence shows the defendant is aware that cohorts in a planned robbery are armed with guns.  See id. at 756-57 n.7 (fact that defendant supplied handgun to be used in robbery was evidence that murder should have been anticipated as result of robbery);  Williams v. State, 974 S.W.2d 324, 330 (Tex. App.BSan Antonio 1998, pet. ref=d) (defendant should have anticipated murder that occurred during robbery where he knew co-conspirator had gun).

The evidence shows that appellant participated in a conspiracy to rob the victim, and in the attempt to carry out that robbery, a murder was committed.  Because appellant knew that firearms were being used to facilitate the robbery, he should have anticipated that a murder was possible.  See Longoria, 154 S.W.3d at 756-57 n.7; Williams, 974 S.W.2d at 330.  I conclude that proof of appellant=s guilt is not so obviously weak as to undermine confidence in the jury's determination or greatly outweighed by contrary proof.  Therefore, I would hold the evidence is factually sufficient under section 7.02(b) of the penal code to support the jury=s finding that appellant is guilty of the offense of capital murder, and I would address appellant=s remaining issues.  For these reasons, I respectfully dissent.

FEDERICO G. HINOJOSA

Justice

Publish.  See Tex. R. App. P. 47.2(b).

Dissenting Opinion delivered and filed this

the 27th day of July, 2006.