No. 05-09-00175-CR
Opinion Filed January 26, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-53439-W.
Before Justices BRIDGES, LANG, and LANG-MIERS.
Opinion By Justice LANG.
Kendrick Bernard Demus appeals the trial court's judgment convicting him of capital murder. The jury found him guilty and the trial court assessed his punishment at imprisonment for life. Demus raises two issues on appeal arguing the evidence is legally and factually insufficient to support his conviction. We conclude the evidence is legally and factually sufficient. The trial court's judgment is affirmed.
The record shows that Demus is also known as "KD" and "Cash."
I. FACTUAL AND PROCEDURAL BACKGROUND
Demus advertised a car for sale on Craig's List and Christian Marton responded to the internet advertisement. Marton, Monica Stafford, his girlfriend, Lisa Marton, his younger sister, and his cousin Benny drove Stafford's red Tahoe to Dallas to see the advertised car at a Whataburger. Stafford and Lisa Marton went inside the Whataburger while Marton and Benny met with Demus. After test driving the car, the three men went inside the Whataburger. Marton discussed with his sister whether he should buy the car. Demus became "very mad," told them that they were "wasting his time because he'[d] been there for an hour and [] he ha[d] other stuff to do," and he walked out. However, afterward, Demus called Marton repeatedly and the two continued to discuss the price of the car. Meanwhile, Demus told George Carter that someone was going to buy the car from him and asked if Carter was willing to "jack" or rob him. They agreed to divide the money 50/50. A few days later, Demus called Carter, told him Marton was coming to Dallas to meet him, and asked Carter to "jack" him. Carter met with Demus and Demus gave him a gun wrapped in a black T-shirt. Then, Demus told Carter where to find Marton. Four days later, Marton called Stafford, told her Demus had lowered the price of the car, and stated he wanted to go get the car. Marton and Stafford drove to Dallas in the red Tahoe, which had a trailor attached for the purpose of transporting the car. Marton and Stafford planned to meet Demus at the Whataburger. However, Demus told Marton he was already at "the apartment complexes" and gave them directions. Marton and Stafford did not see Demus or the car in the apartment complex, so they parked outside the complex and called Demus to tell them where they were. While waiting for Demus to arrive, Marton stood outside the Tahoe talking to Benny on his cellular telephone. Stafford remained inside the Tahoe "texting." On the windows of the Tahoe was a written notice that the rims were for sale. Carter approached Marton and inquired about the rims on the Tahoe. Then, Stafford heard Carter say "give me your money and get off the phone." She said she saw Carter point a gun at Marton. Then, Marton reached for his concealed gun and Carter fired the gun at Marton. She heard Marton scream and watched Carter turn and run away. Marton died from the gunshot wound. II. LEGAL AND FACTUAL SUFFICIENCY
In issues one and two, Demus argues the evidence is legally and factually insufficient to support his conviction for capital murder. He contends there is no evidence showing he shot Marton or that he acted as a party with the specific intent to kill Marton. He argues the evidence shows that he is guilty of only the lesser included offense of murder. Further, he claims that he could not have reasonably anticipated Marton would be shot in the course of the robbery because neither he nor Carter knew Marton was carrying a weapon. The State responds that Marton's murder was committed in furtherance of a conspiracy to commit robbery and Demus should have anticipated the possibility of a murder resulting from the robbery. A. Standards of Review
Differences exist between a legal sufficiency and factual sufficiency review of the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). However, a factual sufficiency review is barely distinguishable from a legal sufficiency review. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007); Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). The primary difference between the two standards is that a legal sufficiency review requires an appellate court to defer to the jury's credibility and weight determinations while a factual sufficiency review permits the appellate court to substitute its judgment for the jury on these questions, albeit to a very limited degree. See Rollerson, 227 S.W.3d at 724; Marshall, 210 S.W.3d at 625. 1. Legal Sufficiency
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Rollerson, 227 S.W.3d at 724; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the jury's judgment. See Marshall, 210 S.W.3d at 625; King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). All evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Marshall, 210 S.W.3d at 625; Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004); Johnson v. State, 967 S.W.2d 410, 411 (Tex. Crim. App. 1998). 2. Factual Sufficiency
In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). When conducting a factual sufficiency review, an appellate court considers all of the evidence, both direct and circumstantial, whether properly or improperly admitted. See Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007); Marshall, 210 S.W.3d at 625. Reversal for factual insufficiency occurs only when: (1) the evidence supporting the verdict is so weak the verdict seems clearly wrong and manifestly unjust; or (2) there is some objective basis in the record that shows the great weight and preponderance of the evidence contradict the jury's verdict. See Berry, 233 S.W.3d at 854; Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417. B. Applicable Law
A person commits the offense of capital murder if he intentionally commits murder in the course of committing or attempting to commit robbery. See Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon Supp. 2009). The Court of Criminal Appeals has referred to § 7.01 and § 7.02 of the Texas Penal Code as the "law of parties." E.g., Montoya v. State, 810 S.W.2d 160, 165 (Tex. Crim. App. 1989). When a jury is charged on the law of parties, a person may be convicted as a party to an offense, if the offense is committed by his own conduct or by the conduct of another for which he is criminally responsible. Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). A person is a conspirator under the law of parties if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators. See id. § 7.02(b). If the felony actually committed should have been anticipated as a result of carrying out the conspiracy, then all conspirators are guilty of the felony actually committed, even if they had no intent to commit it. See id. This is true even if the conspirator did not intend to commit the felony that his co-conspirator actually committed. See id. It is well-settled in Texas that a person can be found guilty of capital murder as a conspiring party under § 7.02(b). E.g., Johnson v. State, 853 S.W.2d 527, 535 (Tex. Crim. App. 1992). If the evidence demonstrates that the defendant conspired with others to commit robbery and, during the robbery, one of the co-conspirators commits capital murder, the defendant can be held criminally responsible for the capital murder if it was in furtherance of the conspiracy's unlawful purpose and should have been anticipated. See Longoria v. State, 154 S.W.3d 747, 755 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd). Texas courts have consistently held that a conspirator should have anticipated that a murder would occur when he knew that a co-conspirator was carrying a gun. See, e.g., Longoria, 154 S.W.3d at 756-57. C. Application of the Law to the Facts
Viewing the evidence in the light most favorable to the verdict, we conclude there was evidence to support Demus's conviction for capital murder. The record shows that Demus conspired with Carter to rob Marton and Demus gave Carter the gun. Demus should have anticipated that Marton could be murdered because he knew Carter was carrying a gun. See, e.g., Longoria, 154 S.W.3d at 756-57. The fact that Demus and Carter did not know Marton was carrying a concealed weapon and might try to defend himself with it does not change the analysis as to whether Demus should have anticipated that a murder would occur. Viewing the evidence in a neutral light, we conclude there is sufficient evidence from which a jury could rationally conclude beyond a reasonable doubt that Demus was guilty of capital murder under the law of parties. The evidence was neither so obviously weak that Demus's conviction is clearly wrong and manifestly unjust nor does the great weight and preponderance of the evidence contradict the jury's verdict. After reviewing all of the evidence under the appropriate standards of review, we conclude the evidence is legally and factually sufficient to support Demus's capital murder conviction as a conspirator under the law of parties. Issues one and two are decided against Demus. III. CONCLUSION
The evidence is legally and factually sufficient to support Demus's capital murder conviction as a conspirator under the law of parties. The trial court's judgment is affirmed.