NO. 01-06-00107-CR
Opinion issued March 22, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 1027214.
Panel consists of Justices TAFT, ALCALA, and HANKS.
GEORGE C. HANKS, Jr. Justice.
A jury found appellant, Joseph Redwoodson Grant, guilty of murder and assessed punishment at life in prison after finding true two enhancement paragraphs, alleging prior felony convictions for unauthorized use of a motor vehicle and burglary of a habitation. In two points of error, appellant argues that the evidence was legally and factually sufficient to show that he committed the offense of murder. We affirm.
Background
Appellant and Telicia Dunn dated, but broke up in May of 2005, when Dunn was three-months pregnant with appellant's baby. After the break up, Dunn went to appellant's grandmother's house, where appellant was staying, and requested that appellant return some of her property. He refused, and Dunn called the police. When the police arrived, appellant and his family members refused to cooperate, and several of appellant's relatives were arrested. Appellant's grandmother passed away that day, and he and his family blamed Dunn for her death. On May 15, 2005, Garon "Darrell" Mahon, a friend, spent the night on Dunn's couch. The next morning, Dunn drove Mahon to a nearby bus stop, where he was going to catch a bus to work. Dunn's two- and six-year-old children were in the back seat. On the way to the bus stop, appellant drove up and parked diagonally in front of Dunn's car. Appellant ran up to Dunn's already rolled down car window and held a gun to her head. He said, "What's up?," and Mahon said, "Man, you tripping. The kids are in the car." Appellant continued to hold the gun to Dunn's head, and Mahon said, "Let me get to my tools. Let me get out of here and get to my tools." Mahon opened the trunk by pushing a button in the glove compartment. Appellant then pointed the gun at Mahon and said, "Fool, you don't want to do that." Mahon responded, "I'm getting out because there are kids in the car." Appellant ran around to the passenger side as Mahon got out of the car. Because he did not have a weapon or anything in his hand, Mahon punched appellant in an attempt to deflect the gun. While appellant and Mahon started to fight, Dunn told her children to get to the floor of the car. She heard six gunshots in quick succession, and she saw appellant walk to his car and drive away. Dunn pulled Mahon, who had been shot multiple times, in the car and drove to get help. Mahon died from his wounds. Dunn showed the police officers where the shooting occurred, and they recovered several .380 caliber casings, including one casing found in the back seat of Dunn's car. A .380 caliber fired, jacketed, hollow-point lead bullet was recovered from Mahon's body in the morgue. Appellant was arrested for Mahon's murder. Sufficiency
In two points of error, appellant argues that the evidence was legally and factually insufficient to show that he committed the offense of murder. Standard of Review
In reviewing a legal-sufficiency challenge, we view the evidence 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. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King, 29 S.W.3d at 562. The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5. Analysis
A person commits murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and intentionally or knowingly commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen. Code Ann. § 19.02(b)(1), (2) (Vernon 2003). Appellant was charged by indictment with murder by two paragraphs alleging that he (1) intentionally and knowingly caused the death of the complainant by shooting him with a deadly weapon, namely a firearm, or (2) intended to cause serious bodily injury to the complainant and did cause the death of the complainant by intentionally and knowingly committing an act clearly dangerous to human life, namely by shooting the complainant with a deadly weapon, namely a firearm. Appellant contends that "the facts and circumstances of the offense do not show an intent to kill the complainant nor do they show an intent to cause serious bodily injury." He further argues that "the evidence is legally and factually insufficient to show that appellant knowingly committed murder." We disagree. All of the shell casings at the scene, the one found in Dunn's car, and the bullet recovered from Mahon's body were fired from the same .380 caliber weapon. Dunn testified that she saw appellant fighting with Mahon, and she heard multiple gunshots. The Houston Police Department Firearms lab forensic firearms examiner testified that, in order for the gun to fire, all of the safeties on the gun had to have been off, the person shooting the gun would have had to pull the slide to cock the firearm, and the person would have to pull the trigger all six times. Viewing the evidence in the light most favorable to the jury's verdict, any rational trier of fact could find beyond a reasonable doubt that appellant held the requisite intent. See Adanandus v. State, 866 S.W.2d 210, 215 (Tex.Crim.App. 1993) (holding that, if deadly weapon is used in deadly manner, inference is almost conclusive that defendant intended to kill). Accordingly, we hold that the evidence was legally sufficient to support the conviction, and we overrule point of error one. Appellant contends that, although he ran up to Dunn's open car window with a loaded gun, he could not have anticipated that Mahon would hit him and that the gun would discharge and kill Mahon. The evidence is undisputed that appellant held a loaded gun to Dunn's head; ran around to the passenger side when Mahon opened the glove compartment and then pointed the gun at Mahon and said, "Fool, you don't want to do that;" because he did not have a weapon or anything in his hand, Mahon punched appellant in an attempt to deflect the gun; appellant and Mahon started to fight; Dunn heard six gunshots in quick succession; and she saw appellant walk to his car and drive away. The jury could infer the intent to kill from appellant's use of a deadly weapon. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996) (holding jury may infer intent to kill from use of deadly weapon unless it would not be reasonable to infer that death or serious body injury could result from use of weapon). Viewing all of the evidence, the evidence supporting the verdict was not so weak as to be clearly wrong and manifestly unjust, nor was the contrary evidence so strong that the standard of proof, beyond a reasonable doubt, could not have been met. Accordingly, we hold that the evidence is factually sufficient to support the verdict, and we overrule point of error two. Conclusion
We affirm the trial court's judgment.