No. 05-09-00393-CR
Opinion Filed July 13, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 204th Judicial District Court Dallas County, Texas, Trial Court Cause No. F06-00451-Q.
Before Justices RICHTER, LANG-MIERS, and MURPHY.
Opinion By Justice MURPHY.
Michael Dwayne Coleman appeals from a jury conviction and agreed fifteen year sentence for engaging in organized crime that resulted in the death of Deldrick Gamble. In three points of error, Coleman challenges the legal and factual sufficiency of the evidence to show he was a gang member and the factual sufficiency of the evidence to show he killed Gamble. We affirm.
Background
Gamble died of a single gunshot wound to the chest during the early morning hours of January 24, 2006. The shooting occurred outside a local nightclub known as "Club Scruggs." Detective Joseph McNulty arrested Coleman for the murder after investigating the crime scene, interviewing eyewitnesses and others, obtaining witness statements, and after eight eyewitnesses identified Coleman from a photo lineup. The State presented fourteen witnesses at the two-day trial, two of which were rebuttal witnesses. Coleman did not testify, but presented five witnesses. Because of Coleman's challenges to the sufficiency of the evidence, testimony of eyewitnesses and investigators related to gang evidence and the shooting is recited in some detail. Testimony of Kendrick Lewis
Kendrick Lewis was Gamble's cousin. He testified that on the night of the shooting, he was at Club Scruggs with his brother Adrean Lewis, Gamble, and his friend Robert Simpson and his wife Candice Thomas. About 1:00 or 1:30 a.m., the club started playing "loud crunk music" and that was when tempers started flaring. A lot of people were throwing gang signs in the club and there was a lot of "eyeballing." He testified that Coleman was throwing "Blood" signs directed at Adrean and Simpson, and they were throwing back signs. Kendrick said Adrean was in a gang called "Black Disciple," a form of a Blood gang. Simpson had been in a gang about five years earlier called "007 Bon Ton," which branched off into the Blood gang. As to Kendrick's gang involvement, he got out of the "Crip" in 1999 and denied that he and Gamble threw gang signs on the night of the shooting. He further testified that Gamble had never been in a gang. Kendrick said that other than gang signs and harsh looks, no arguments occurred in Club Scruggs. Kendrick was leaving the club with Gamble, Adrean, Simpson, and Candice about closing time, and Coleman followed them out. He testified that Coleman walked to Kendrick's passenger window once he was in his car and said, "What's up with it now, Blood?" He described the phrase as a form of disrespect that means the person is ready to fight, kill, or "whatever." Adrean was in the passenger seat and Gamble was in the back seat directly behind Adrean. Adrean said "we can fight," and Kendrick said, "No, no, let's just go home; let's just go home; let's go on and take [Gamble] home, and let's just go home." Coleman, Adrean, and Gamble were yelling at each other and Kendrick tried unsuccessfully to calm them down. After Coleman walked away and disappeared, he came back, pulled up behind Kendrick's car, and blocked them in. Later in his testimony, Kendrick said Coleman was standing in the alley when he fired his gun and was never in the car that blocked them. Coleman showed his gun, which was a .38 or some kind of a revolver, and Simpson popped his trunk and pulled out his gun, which was a .45. Kendrick did not know who shot first. All Kendrick remembered was shots being fired, and he crawled to the side of a van parked next to Kendrick's car. He saw Coleman standing in the middle of the alley shooting and Simpson firing back. Kendrick's car windows were being shot out and Gamble got out of the back seat. Gamble was calling his girlfriend for his gun when he was hit. Kendrick identified Coleman as the shooter from a photo lineup. Kendrick admitted he had twice been in the penitentiary, once for engaging in organized crime, and for possession of a controlled substance and a firearm by a felon. He was on probation for theft at the time of trial. Testimony of Robert "Youngsta" Simpson
Simpson testified that on the night of the shooting, he went to Club Scruggs with his wife Candice, Kendrick, Gamble, and Adrean. He was a member of the "Military Mob" gang. Near the end of the evening, most everyone was up dancing and flashing gang signs. Kendrick did not dance long because "he was just too loaded." Gamble did not dance or flash signs. Upon leaving the club, Simpson and his wife went to their car, and Kendrick, Gamble, and Adrean went to their car. Simpson's car would not start and Kendrick was trying to help him. After a few minutes, Coleman walked past them and look directly at them. Adrean said, "BD-24, something up or something down?" Coleman looked at Adrean, started laughing, and walked off. Then Coleman came back and asked Adrean, "Now what's up Blood?" When Simpson realized Coleman had a revolver, Simpson opened the trunk and got out his wife's .45 Ruger. Simpson fired one shot into the air and said, "Leave, man; we don't want no problem; man, go on about your business." Simpson described Coleman's facial expression as "ready to go to war" and said Coleman started shooting at them. Simpson started shooting back and a gun battle ensued between the two of them. The next day, Simpson identified appellant as the shooter from a photo lineup. At the time of trial, Simpson was in jail for aggravated assault with a deadly weapon unrelated to Gamble's murder. Simpson also admitted to a prior criminal record involving burglary and aggravated assault. Testimony of Earnest Hunter
Earnest Hunter cooked barbeque and sold sandwiches outside Club Scruggs; he saw the shooting from his barbeque stand. According to Hunter, the shooting followed an argument between a group of four or five men and Coleman. He had seen Coleman before and had sold him sandwiches outside the club. About the same time one of the men in the group fired a shot into the air, Coleman turned from a person he was walking toward in the alley and fired into the group. Hunter did not see a gun in Coleman's hand prior to the time he turned and fired. He was unsure whether the other person in the alley handed Coleman the gun, and he could not identify that person as a male or female. He gave a statement to the investigating officer and identified Coleman as the shooter from a photo line-up. Hunter admitted he "might need" corrective lenses but did not wear any. Testimony of Lee Moss
Moss was helping Hunter sell sandwiches and also saw the shooting from the barbeque stand. He testified that he heard arguing as people were coming out of the club just before the shooting began. He first testified there were three people firing guns and that Coleman fired first. Upon further examination, Moss testified there were only two shooters, and "any of them" could have fired first. He made a statement to an investigating officer and identified Coleman as the shooter from a photo lineup. Moss also had "four or five beers" that night and described his vision as "bad." At the time of Moss's testimony, he was in jail for failure to pay child support. Testimony of Detective Joseph McNulty
McNulty was the lead police detective who was called to the crime scene about 3:00 a.m. He investigated the scene, interviewed witnesses, and had witnesses transported to headquarters for further questioning. According to witnesses, Coleman was "flamin'" the night of the shooting-wearing bright red clothing and shoes, the colors of the Blood gang. Witness statements McNulty took included Adrean, Simpson, Hunter, Moss, and Gil Gwag, a man who was working at a store near the club and had since moved to Korea. Eight witnesses-Simpson, Adrean, Candice, Hunter, Moss, Gwag, LaTonya Fields, and Kendrick-also identified Coleman as the shooter from the same photo lineup. McNulty testified that it was important that, of those witnesses, Hunter, Moss, and Gwag were independent and had no gang affiliation-the type he relies on in gang altercations. Testimony of Detective B.K. Nelson
Nelson testified that he had been with the Dallas Police Department gang unit for twelve years, gathering street gang intelligence and identifying gang members. Nelson described a gang, as defined by the State of Texas, as three or more people with a common identifying sign or symbol, committing a crime. Gangs fall under two types, Bloods or Crips, and each gang has its own identifier. Based on Coleman's chest tattoos, Nelson identified him as a member of Fort Worth's "52nd Eastwood" gang with associates in East Dallas's "415 Frazier Courts" gang. Both of those gangs are "Blood" sets, and both meet the definition of a "gang." Members have as common identifiers tattoos, red bandanas, and the color red. Nelson testified that both gangs commit crimes such as aggravated assaults, murders, drug-trafficking, and unauthorized use of a vehicle. Nelson did not know when Coleman got his tattoos and agreed that gang members can reform. Prior to Coleman's arrest, Nelson did not know Coleman. Testimony of Raymond Cooper
Cooper, a firearms examiner, testified he received a single bullet from the medical examiner who conducted an autopsy on Gamble. The bullet was "a .357 size" that could be fired in either a .38 or .357 caliber weapon. Defense Witnesses
Coleman did not testify but called five witnesses in his defense. Carolyn McCoy and Gary Hunt, both Club Scruggs employees, saw part of the shooting on monitors inside the club. They saw two shooters, but neither McCoy nor Hunt thought Coleman was one of the shooters. Corey Walker testified he had met Coleman approximately six months before the shooting and did not know Coleman "to gangbang." Walker was at the club the night of the shooting and did not see Coleman throw any gang signs. Walker admitted, however, that he left the club before gang signs were thrown. Walker also testified to his prior convictions. Shreka Chambers and Marada Allen testified they were also at the club the night of the shooting. Coleman was with them and two others, and was wearing red. Chambers and Allen testified they had known Coleman for about five years. They did not know Coleman "to gangbang," did not see him throw any gang signs, and did not recall seeing him "mean-mugging or staring or glaring" at anyone that night. According to both witnesses, Coleman was inside the club with them when the shooting occurred. Rebuttal Testimony
In rebuttal, the State called Antonio Cherry, who was also at the club with Chambers and Coleman the night of the shooting, and Kendrick's brother Adrean. In a statement to the police, Cherry, a member of the 415 East Dallas Blood, said he did not know where Simpson was at the time of the shooting and he would not lie for anybody. Cherry denied Coleman threw any gang signs or "gangbang[ed]." Cherry testified Coleman took him home that night and did not appear nervous, did not mention the shooting, and did not appear to be in a rush to leave. Adrean, in jail at the time of trial for family assault violence, testified he was throwing "Black Disciple" gang signs at the club the night of the shooting and Coleman was throwing "Blood" signs back at him. The two made eye contact but no confrontation occurred until they left the club and reached their cars. Adrean testified Coleman walked by the car staring at them. When Adrean asked him what he was staring at, Coleman said he was staring at them and continued walking. Coleman returned with a pistol in hand, threw his gang sign in the air, and said, "What it do, Blood?" Simpson reacted by getting his gun and shooting twice in the air. Coleman then shot toward the ground and said, "Is that supposed to scare me?" Coleman began shooting at them, and Simpson responded by shooting towards Coleman. About ten seconds later, Gamble was hit. Adrean testified he had seen Coleman by himself inside the club and saw him drive away alone after the shooting. Applicable Law and Standard of Review
We review challenges to the sufficiency of the evidence under well-known standards. In reviewing a legal sufficiency challenge, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We review the evidence in the light most favorable to the verdict and defer to the jury's credibility and weight determinations. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007) (quoting Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006)). In a factual sufficiency review, we consider all the evidence in a neutral light. Laster, 275 S.W.3d at 518. Although we defer to the jury's findings concerning credibility, we may override the verdict to "prevent manifest injustice." Id. at 518, 525. We will conclude the evidence is factually insufficient if (1) the supporting evidence is "too weak" to support the fact finder's verdict or (2) considering conflicting evidence, the fact finder's verdict is against the great weight and preponderance of the evidence. Id. at 518. If we conclude the evidence is factually insufficient, we must explain why the evidence is too weak to support the verdict or why the conflicting evidence greatly outweighs the verdict. Id. Based on the indictment in this case, to establish Coleman's guilt, the State had to prove beyond a reasonable doubt that Coleman, as a member of a criminal street gang, murdered Gamble. Tex. Penal Code Ann. § 71.02(a)(1) (Vernon Supp. 2009). A criminal street gang is "three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities." Id. § 71.01(d) (Vernon 2003). Application of Law to Facts
In his three points of error, Coleman challenges the legal and factual sufficiency of the evidence to show he was a gang member and the factual sufficiency of the evidence to show he killed Gamble. As to gang membership, Coleman does not dispute that the "52nd Eastwood" gang is a gang as legally defined or that his tattoos reflect membership in the gang. Instead, he claims the State failed to present any evidence he was a member at the time of the shooting. Coleman argues that Nelson's testimony on this element was insufficient because Nelson did not identify Coleman as a gang member until the day of the arrest, did not know when Coleman got his tattoos, and knew it was possible for gang members to reform. Coleman suggests that Nelson would have known of him before the arrest if he was an active gang member. Coleman also argues that the testimony from Walker, Chambers, Allen, and Cherry that they did not know him to "gangbang" shows the State failed to meet its burden of proof. With regard to the identification of Coleman as the shooter, Coleman contends the State's witnesses were not credible. He argues specifically that Kendrick's testimony was not credible because he had been drinking; Simpson's testimony was not credible because he was in a gang, was seeking revenge, and had a criminal record; Adrean's testimony was not credible because he was the only witness who testified that Coleman was alone at the club; Moss's testimony was not credible because of the inconsistencies in his testimony, he had been drinking, and had poor eyesight; and Hunter's testimony was not credible because he did not identify the gender of the person Coleman met in the alley, Hunter's testimony was inconsistent with other testimony that someone in a car drove up and handed Coleman a gun, and Hunter was not close enough to the shooter to identify him. Coleman also argues that no physical or forensic evidence linked him to the murder and his witnesses testified he was inside the club when the shooting occurred. Coleman's arguments are challenges only to the witnesses' credibility and the weight to give their testimony, both matters for the jury. See Laster, 275 S.W.3d at 525; Rollerson, 227 S.W.3d at 724. By returning a guilty verdict, the jury necessarily believed the testimony of the State's witnesses and rejected Coleman's evidence, a finding we will not disturb in conducting our sufficiency reviews. Laster, 275 S.W.3d at 525; Rollerson, 227 S.W.3d at 724. Viewing the evidence in the light most favorable to the verdict, we conclude the evidence was legally sufficient to show beyond a reasonable doubt that Coleman was a member of a street gang. Testimony from which a rational jury could have found beyond a reasonable doubt that Coleman was a gang member included (1) Nelson's testimony that Coleman's tattoos identified him as a member of the "52nd Eastwood" gang, a "Blood" set meeting the legal definition of a gang and known for committing murders; (2) the testimony of Kendrick, Simpson, and Adrean that Coleman flashed "Blood" signs while in the club, approached them outside the club, and "disrespected" them with his statement "What's up with it now Blood?"; and (3) testimony that Coleman was "flamin'" and wearing bright red clothing. See, e.g., Curiel v. State, 243 S.W.3d 10, 16-17 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd) (evidence legally sufficient to support participation as gang member where appellant wore gang color, had tattoo, and admitted being gang member); Chaddock v. State, 203 S.W.3d 916, 920-22 (Tex. App.-Dallas 2006, no pet.) (same — appellant associated with known gang members, had identifying tattoos, and acted in conformity with gang's behavior). We overrule Coleman's legal sufficiency point of error. Coleman's two factual sufficiency points as to gang membership and his murder of Gamble also fail. Nelson, Kendrick, Simpson, and Adrean all testified on the issue of gang membership. There was also repeated testimony that Kendrick, Simpson, Gamble, Candice, and Adrean left the club together, Coleman shot at them, and Coleman hit Gamble. This evidence is not "too weak" to support the jury's verdict. See Lancon v. State, 276 S.W.3d 518, 522-23 (Tex. App.-San Antonio 2008, pet. ref'd) (State's identification evidence, which appellant hotly contested, was not too weak that verdict clearly wrong and unjust); Curiel, 243 S.W.3d at 17-18 (same — gang membership). Although Coleman relies on the testimony from Walker, Chambers, Allen, and Cherry that they did not know him to "gangbang" and that he was with them inside the club at the time of the shooting, this testimony does not greatly outweigh the State's evidence, which included three independent witnesses, so as to warrant overriding the verdict. See Lancon, 276 S.W.3d at 522-23 (State's identification evidence was not greatly outweighed by defensive evidence); Curiel, 243 S.W.3d at 17-18 (same — gang membership). Further, although Coleman asserts that no physical and forensic evidence exists linking him to the murder, neither physical nor forensic evidence is necessary to support a conviction. See Lancon v. State, 253 S.W.3d 699, 706-07 (Tex. Crim. App. 2008) (lack of physical evidence alone not dispositive in factual sufficiency review when witness testimony available for jury's consideration); Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (testimony of single eyewitness can be factually sufficient to support felony conviction). Nonetheless, the record shows a physical link-the bullet recovered from Gamble's body was consistent with the type of revolver Coleman was said to have used. Viewing the evidence in a neutral light, we cannot conclude the verdict is manifestly unjust. See Laster, 275 S.W.3d at 518. Conclusion
Based on this record, we overrule Coleman's points of error and affirm the trial court's judgment.