ANN CRAWFORD McCLURE, Chief Justice

Appeal from 384th District Court of El Paso County, Texas (TC # 20120D01804) OPINION

Craig Graham appeals his convictions of two counts of murder. Appellant was charged with capital murder by killing two individuals during the same criminal transaction, but a jury acquitted him of capital murder and found him guilty of the lesser-included offenses of murder. The jury assessed Appellant's punishment at a fine of $10,000 and imprisonment for a term of ninety-nine years on each count. For the reasons that follow, we affirm.

FACTUAL SUMMARY

Shortly after midnight on January 15, 2012, Leah Morgan and April McWilliams went to a nightclub, Club Fussion, to meet Morgan's friend, Jabril "Mike" Ndaman. Ndaman met them outside of the club and they went inside together. Appellant, who is Ndaman's friend and known by the nickname "Iron Man," was also at the club that evening with Dulce Cazares and two other friends. Ndaman and Morgan had just ordered drinks when a dispute erupted between Ndaman and another man standing at the bar. According to Morgan and Ndaman, Gabriel McCastler started bothering Morgan by pulling on her hand, but one of McCastler's friends, Myron O'Leary, said that Morgan was flirting with McCastler and he had simply reacted to her attention. Ndaman asked McCastler to stop and they exchanged loud words. Several of McCastler's friends came over and stood with him as he argued with Ndaman. Appellant eventually joined Ndaman, and O'Leary recalled that Appellant tried to get involved in the confrontation by being more aggressive. Ndaman took off his jacket to get ready to fight, but the bouncers intervened and separated the two groups. The bouncers moved McCastler and his friends out the rear door of the club while Ndaman was escorted out through the front door. After a short period of time, the bouncers allowed everyone back inside of the club.

Ndaman and Morgan went to a different part of the club than McCastler and his friends, but Morgan noticed that the McCastler group was giving them "threatening looks." After a while, Appellant approached Ndaman and told him not to turn his back on the McCastler group. Cazares and her friends left around 1:30 a.m., but Appellant told her that he would get a ride with someone else. Texts exchanged between Appellant and Cazares showed that his attention remained focused on the McCastler group. At 1:40 a.m., Cazares sent Appellant a text asking if he was going to come over to their friend's house. A few minutes later, Appellant texted her: "Yeah after I beat these n****s up."

Ndaman and Morgan remained at the club without any further incident until they exited the rear door at closing time. Several members of the McCastler group gathered near the exit when Ndaman, Morgan, and Appellant were leaving. O'Leary testified that the McCastler group was being "rowdy" and saying loudly that no one wanted to fight them. Ndaman heard someone say that the McCastler group had a knife or knives, and Appellant responded by saying that they were bringing knives to a gunfight. Ndaman walked Morgan and her friend to her car and they left. Ndaman and another friend also left.

Shenae Brigman-Portee was leaving the club near closing time when she saw two groups of people on opposite sides of the street arguing and cursing at each other. Brigman-Portee and other witnesses then saw Tyrone Head fire approximately five to seven shots into the air. Appellant responded by firing multiple shots in the direction of Head and the group of people standing across the street. Bullets from Appellant's gun struck Head, Damien Bailey, and Preston Brown. Head survived, but Bailey and Brown died as a result of their gunshot injuries.

The police picked up Appellant for questioning later in the day of the shooting and he gave a video-recorded statement in which he claimed he shot Tyrone Head in self-defense. At the club, Appellant walked up to the bar to order a drink, and saw his friend Ndaman arguing with a large group of men. The bouncers separated Ndaman and the other group and made them exit the club, but Appellant believed they all came back in later. At closing time, Appellant exited the club and he saw one of the men who had argued with Ndaman earlier in the evening. The man was "twirling a knife" while saying he was going to "kill that n----r." Appellant believed the threat referred to Ndaman. After he exited the club, Appellant saw a friend known to him only as "Banger" and he told Banger that one of the men had a knife. Banger gave him a semiautomatic handgun. Appellant saw that a black car was blocking the street and a man standing next to the car pulled out a gun. The man fired two to three shots in the air, and then pointed the gun at Appellant and began firing. Appellant responded by pulling out his gun and he fired directly at the vehicle where the shooter from the McCastler group was standing. Appellant believed that both he and the other shooter emptied their clips. Appellant then approached a car containing three of Banger's friends and gave the gun to one of them. Appellant started to leave with Banger's friends, but he changed his mind and caught a ride with someone else.

The guilt-innocence charge contained abstract definitions of capital murder, murder, and manslaughter, the culpable mental states of intentional, knowing, and reckless, the law of self-defense, and the offenses of capital murder, murder, and manslaughter. The application paragraph related to the capital murder charge (the murders of Bailey and Brown during the same criminal transaction) does not apply the law of self-defense. The law of self-defense is applied, however, to each lesser-included offense of murder. The law of transferred intent is also applied to the lesser-included offenses of murder. The jury acquitted Appellant of capital murder, but rejected his claim of self-defense and found him guilty of the lesser-included offenses of murder.

SUFFICIENCY OF THE EVIDENCE

In Issue One, Appellant challenges the legal and factual sufficiency of the evidence supporting his conviction of two counts of murder. His sufficiency arguments are directed exclusively at the evidence supporting the jury's finding that he intentionally or knowingly caused the deaths of Bailey and Brown when he fired multiple shots at a group of people.

Standard of Review and Applicable Law

In Brooks v. State, the Court of Criminal Appeals abandoned factual sufficiency review of the evidence supporting a criminal conviction where the State's burden of proof is beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.Crim.App. 2010)(finding no meaningful distinction between the legal and factual sufficiency standards and no justification for retaining both standards, therefore overruling the factual sufficiency review adopted in Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996)). The legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), is the only standard a reviewing court applies in determining whether the evidence is sufficient to support a conviction. Brooks, 323 S.W.3d at 894-95.

Under that standard, a reviewing court must consider all evidence in the light most favorable to the verdict and in doing so determine whether a rational justification exists for the jury's finding of guilt beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95, citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Because the jury is the sole judge of the weight and credibility of the evidence, we must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App. 2014). Further, we are not permitted to reevaluate the weight and credibility of the evidence or substitute our judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App. 2010). Our task is to determine whether, based on the evidence and reasonable inferences drawn therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Id.

When conducting a sufficiency review, we consider both direct and circumstantial evidence and all reasonable inferences that may be drawn from the evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). The standard of review is the same for both direct and circumstantial evidence cases. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.Crim.App. 2010). Each fact need not point directly and independently to the guilt of the accused, so long as the cumulative force of all the evidence, when coupled with reasonable inferences to be drawn from that evidence, is sufficient to support the conviction. Hooper, 214 S.W.3d at 13. Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004).

Murder , Transferred Intent , and the Culpable Mental States

A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. See TEX.PENAL CODE ANN. § 19.02(b)(1)(West 2011). Because murder is a result-of-conduct offense, the culpable mental states necessarily relate to the result of the conduct, that is, the causing of the death. Schroeder v. State, 123 S.W.3d 398, 400 (Tex.Crim.App. 2003). A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result. TEX.PENAL CODE ANN. § 6.03(a)(West 2011). A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. TEX.PENAL CODE ANN. § 6.03(b).

A person's culpable mental state is typically proven by circumstantial evidence. See Moore v. State, 969 S.W.2d 4, 10 (Tex.Crim.App. 1998); Coutta v. State, 385 S.W.3d 641, 654 (Tex.App.--El Paso 2012, no pet.); Smith v. State, 56 S.W.3d 739, 745 (Tex.App.--Houston [14th Dist.] 2001, pet. ref'd). A jury may infer intent or knowledge from any facts that tend to prove its existence, including the acts, words, conduct of the accused, and the method of committing the offense. Guevara v. State, 152 S.W.3d 45, 50 (Tex.Crim.App. 2004).

Additionally, a person is criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that a different person was injured, harmed, or otherwise affected. TEX.PENAL CODE ANN. § 6.04(b)(2)(West 2011). This statutory principle is commonly known as transferred intent. See Manrique v. State, 994 S.W.2d 640, 647 (Tex.Crim.App. 1999)(McCormick, J., concurring); Delacerda v. State, 425 S.W.3d 367, 397 (Tex.App..--Houston [1st Dist.] 2011, pet. ref'd).

The sufficiency of the evidence is measured by reference to the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex.Crim.App. 2009). Under a hypothetically correct charge, the State was required to prove beyond a reasonable doubt that Appellant: (1) intentionally caused the death of each victim by shooting a firearm into a crowd of people; (2) knowingly caused the death of each victim by shooting a firearm into a crowd of people; or (3) Appellant intended to cause the death of Tyrone Head by shooting him with a firearm, but he instead killed Bailey and Brown.

Intentional Murder

Citing Hughen v. State, 265 S.W.3d 473 (Tex.App.--Texarkana 2008), aff'd, 297 S.W.3d 330 (Tex.Crim.App 2009), Appellant argues that the evidence is insufficient to support his conviction of intentional murder because he did not take a weapon to the club and he did not initiate the gunfire. In Hughen, the defendant and his girlfriend, Batts, had been fighting all day, and he followed her to a house occupied by two men. Hughen, 265 S.W.3d at 485. Hughen, who was armed with a knife, demanded that Batts come outside, but she refused and the two men attempted to intervene by talking with Hughen. Id. Eventually, Batts came out of the house, and she and Hughen argued. Id. During the course of the argument, Hughen threatened to kill Batts with the knife. Id. When Batts tried to go back inside of the house, Hughen grabbed her, and held the knife to her neck. Id. One of the two men, Milhollon, attempted to stop Hughen. Id. Hughen stabbed Milhollon several times, including twice in the neck. Id. A jury convicted Hughen of attempted murder.

On appeal, Hughen argued that the evidence was insufficient to show he had the specific intent to kill Milhollon. In summarizing the evidence which it found sufficient to prove that Hughen had the specific intent to kill, the court of appeals noted that Hughen went to the house armed with the knife, and he threatened to kill Batts with it before turning it on Milhollon when he attempted to rescue Batts. Id., 265 S.W.3d at 486. The court of appeals also held that the evidence showing that Hughen stabbed Milhollon in the neck was sufficient to prove his specific intent to kill. Hughen, 265 S.W.3d at 486. Hughen does not establish a minimum standard of evidence required for a jury to find that a defendant had the specific intent to kill. Likewise, it does not stand for the proposition that specific intent to kill must be supported in every case by evidence that the defendant armed himself before the incident and verbalized his intent to kill.

Appellant focuses much of his argument on his own testimony that he only intended to shoot at Tyrone Head, but Appellant made statements at the time of the shooting indicating that he intended to shoot at everyone in the parking lot. A witness heard Appellant state the following immediately after firing the weapon into the crowd across the street: "F**k this s**t. I'm going to grab another clip. I'm fixing to dump out on the whole parking lot." From this statement, the jury could have inferred that Appellant intended to shoot at people other than Tyrone Head. Our review of the evidence is not limited to Appellant's statements because Appellant's actions are also indicative of his intent.

The indictment alleged, and the evidence showed, that Appellant used a firearm to shoot at a crowd of people. A firearm is a deadly weapon per se. TEX.PENAL CODE ANN. § 1.07(a) (17)(A)(West Supp. 2015). Intent to kill may be inferred from the use of a deadly weapon, unless in the manner of its use it is reasonably apparent that death or serious bodily injury could not result. Cavazos v. State, 382 S.W.3d 377, 384 (Tex.Crim.App. 2012); Godsey v. State, 719 S.W.2d 578, 580-81 (Tex.Crim.App. 1986). The Court of Criminal Appeals observed in Godsey that "[i]f a deadly weapon is used in a deadly manner, the inference is almost conclusive that [the defendant] intended to kill . . . ." Godsey, 719 S.W.2d at 581. In this case, the evidence showed that Appellant fired a gun multiple times at the group of people standing across the street, and after a short pause, opened fired again at the crowd. Firing a gun repeatedly into a crowd of people constitutes a manner of use in which death or serious bodily injury was a likely result. See Medina v. State, 7 S.W.3d 633, 636 (Tex.Crim.App. 1999).

We conclude that the evidence is sufficient to support the jury's finding that Appellant had the specific intent to kill. See Medina, 7 S.W.3d at 636 (finding evidence sufficient to prove intent to kill where defendant fired automatic rifle at group of people); Vuong v. State, 830 S.W.2d 929, 933 (Tex.Crim.App. 1992)(finding evidence sufficient to prove intent to kill where defendant fired a weapon into crowd inside of a tavern). It is unnecessary to address whether the evidence is also sufficient to support Appellant's conviction under the alternate theories of knowing murder and transferred intent. Issue One is overruled.

CAPITAL MURDER

In Issue Two, Appellant contends that he is entitled to a new trial because the trial court instructed the jury on a capital murder in the absence of any evidence that he had the specific intent to kill Bailey and Brown, and the charge misapplied the law of transferred intent to capital murder. We understand him to argue that since he only intended to kill one person, Tyrone Head, that single intent could not transfer to the murders of Bailey and Brown.

Standard of Review

Appellate review of alleged jury charge error is a two-step process. Kirsch v. State, 357 S.W.3d 645, 649 (Tex.Crim.App. 2012); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984)(op. on reh'g). First, we must determine whether error occurred. Wooten v. State, 400 S.W.3d 601, 606 (Tex.Crim.App. 2013). If there is error in the charge, we must then analyze whether sufficient harm resulted from the error to require reversal. Wooten, 400 S.W.3d at 606. Under this second step, the degree of harm necessary for reversal depends on whether the appellant properly preserved the error by objection. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App. 2003).

Transferred Intent -- Capital Murder

We will first address Appellant's complaint that the charge is erroneous because the trial court misapplied the law of transferred intent to the capital murder offense. We have reviewed the entire charge and do not find that the trial court instructed the jury on transferred intent with respect to the capital murder offense. While the court applied the law of transferred intent to the lesser-included offenses of murder, the charge does not apply transferred intent to capital murder. Defense counsel seized upon the absence of a transferred intent instruction in connection with the capital murder offense, and he informed the jury during closing arguments that the charge did not authorize a conviction for capital murder under the law of transferred intent. He further argued that the jury should find Appellant not guilty of capital murder because he was shooting only at Tyrone Head, and he had no intent to shoot at or kill either Bailey or Brown. Appellant's argument is without merit because the trial court did not apply the law of transferred intent to the capital murder offense.

Inclusion of Capital Murder in the Charge

Appellant next argues that the trial court should not have submitted the capital murder offense to the jury because there is no evidence that he had a specific intent to kill both Bailey and Brown. In addressing Issue One, we held that the evidence is sufficient to support to the jury's finding that Appellant had the specific intent to kill both Bailey and Brown when he fired the gun repeatedly at the crowd of people. The trial court did not err by submitting the capital murder offense to the jury. Even if we assume that the court's charge should not have included capital murder, Appellant cannot show that he suffered any harm because the jury acquitted him of that offense. See State v. Shelton, 869 S.W.2d 513, 515-16 (Tex.App.--Tyler 1993, no pet.)(where jury acquitted defendant of the greater offense, any error in the submission of the greater offense was harmless). Issue Two is overruled. Having overruled both issues, we affirm the judgment of the trial court. March 30, 2016

ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish)