Opinion
Nos. 05-05-00677-CR, 05-05-00730-CR
Opinion filed June 9, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-58854-Vtu F03-58855-Vtu. Affirmed as Modified.
Before Justices MOSELEY, LANG, and MAZZANT.
OPINION
A jury convicted Kendell Lashawn Murphy of the murder of Bryan Witcher and the aggravated assault of Glenn Timmons and assessed punishment of thirty-five years' and ten years' confinement, respectively. In four issues, appellant attacks the legal and factual sufficiency of the evidence supporting his convictions. In a fifth issue, appellant argues the trial court erred in failing to grant a mistrial after the State argued facts outside the record in closing argument. For the following reasons, we resolve appellant's issues against him and affirm the trial court's judgments.
Appellate court cause number 05-05-00677-CR; trial court cause number F03-58855-VTU.
Appellate court cause number 05-05-00730-CR; trial court cause number F03-58854-VTU.
I. FACTUAL AND PROCEDURAL BACKGROUND
Glenn Timmons testified that appellant and his twin brother Londell attacked Timmons and Witcher with knives. Timmons was seriously injured, and Witcher died. The incident occurred about 9:00 or 10:00 p.m. on November 26, 2003, in a convenience store parking lot in a known crime area. Appellant and Londell were tried together. The jury was charged on the law of parties, and the application paragraphs authorized the jury to find appellant guilty if it believed appellant committed the offenses "either acting alone or with another as a party."II. SUFFICIENCY OF THE EVIDENCE
In four issues, appellant challenges the sufficiency of the evidence supporting his convictions.A. Standard of Review and Applicable Law
We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Powell v. State, No. PD-0726-05, 2006 WL 931606, at *2 (Tex.Crim.App. Apr. 12, 2006). Viewing the evidence in the light most favorable to the verdict, we determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Powell, 2006 WL 931606, at *2; Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). The question under a factual sufficiency challenge is, considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence can be factually insufficient if the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85; Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004). The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex.App.-Dallas 1998, pet. ref'd). A person commits the first degree felony offense of murder if he intentionally or knowingly causes the death of another person. Tex. Pen. Code Ann. § 19.02(b)(1), (c) (Vernon 2003). A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another, and he commits the second degree felony offense of aggravated assault if he commits an assault and causes serious bodily injury to another or uses or exhibits a deadly weapon during the commission of the assault. Id. §§ 22.01(a)(1), 22.02(a)(1)-(2), (b) (Vernon Supp. 2005). "A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Id. § 7.01(a) (Vernon 2003). A person is criminally responsible for an offense committed by the conduct of another if "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense[.]" Id. § 7.02(a)(2) (Vernon 2003). Evidence is sufficient to convict under the law of parties when the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1994). Knowledge and intent may be inferred from the acts, words, and conduct of the accused. Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App. [Panel Op.] 1982). When, as in this case, the trial court's charge authorized the jury to convict on different theories, we uphold the verdict of guilty if the evidence is sufficient on any one of the theories. See Rabbani v. State, 847 S.W.2d 555, 558-59 (Tex.Crim.App. 1992).B. Discussion
Timmons testified his attackers said "What's up?" to him, and then one stabbed him in the stomach, and the other stabbed him in the back. Timmons recognized his attackers and knew them from the neighborhood as "the twins," but he could not tell them apart. Timmons then saw them both stab Witcher; according to Timmons, he saw "both of the[ir] hands moving with kitchen knives." Timmons admitted he told investigating officers that he did not know the attackers and their caps were pulled down over their faces. He did so because he considered the stabbing a "personal matter" and was going to "take matters in [his] own hands." However, Timmons later told an officer he knew the attackers by sight as "the twins" and identified them from a photo line-up. Timmons knew the apartment where "the twins" lived. Appellant and his brother had abandoned the apartment, but the police discovered their names from evidence in the apartment. In addition, the police took a pair of shorts from the apartment; there was testimony that DNA evidence showed a very high probability that one of the twins wore them and that the shorts also contained Witcher's genetic markers. Timmons admitted he had a criminal record and had been a drug dealer. Appellant's arguments that Timmons's identification of appellant was "flawed and should have been disregarded" and his testimony was contradictory are unavailing because the jury is the sole judge of Timmons's credibility and may choose to believe or disbelieve all or any part of his testimony. See Jones, 944 S.W.2d at 647-48; Sharp, 707 S.W.2d at 614. Moreover, appellant's argument that the evidence is insufficient because Timmons could not state unequivocally which twin stabbed either him or Witcher is unavailing because there was evidence appellant and his brother attacked Timmons and Witcher at the same time, thus supporting appellant's convictions as a principal or a party. See Polk v. State, 710 S.W.2d 610, 611 (Tex.App.-Dallas 1986, pet. ref'd) (evidence sufficient to support conviction of one of two assailants for murder as party when he was present and participating in offense because it was "unnecessary to prove which assailant actually pulled the trigger"); Tex. Pen. Code Ann. § 7.02(a)(2); Ransom, 920 S.W.2d at 302. Viewing the evidence in a light most favorable to the verdict and applying the Jackson criteria, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of murder and aggravated assault either acting alone or with another as a party. Because the evidence is legally sufficient to support appellant's convictions for these offenses, we resolve appellant's first and third issues against him. See Jackson, 443 U.S. at 319; Powell, 2006 WL 931606, at *2. Further, considering all of the evidence in a neutral light, we conclude a jury was rationally justified in finding appellant guilty beyond a reasonable doubt of the offenses of murder and aggravated assault either acting alone or with another as a party. We cannot say the evidence of guilt considered by itself is too weak to support the finding of guilt beyond a reasonable doubt, or that the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85; Escamilla, 143 S.W.3d at 817. We need not further detail the rest of the evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Accordingly, we conclude the evidence is factually sufficient to support appellant's convictions for these offenses, and we resolve appellant's second and fourth issues against him.III. MOTION FOR MISTRIAL
In his fifth issue, appellant contends the trial court erred in failing to grant a mistrial after the State argued facts outside the record. The State argues appellant failed to preserve error as to the argument complained of on appeal because he never received an adverse ruling on his objection raising that argument.A. Standard of Review and Applicable Law
An objection to argument must be pressed to the point of procuring a ruling or the objection is waived. DeRusse v. State, 579 S.W.2d 224, 235 (Tex.Crim.App. [Panel Op.] 1979); Mayberry v. State, 532 S.W.2d 80, 84 (Tex.Crim.App. 1975). A statement by the trial court that the jury would remember the evidence is not sufficient to preserve error. DeRusse, 579 S.W.2d at 235; Mayberry, 532 S.W.2d at 84.B. Discussion
During closing argument, the following exchange occurred:[Prosecutor]: You know, we sit here and everybody talks about this area and police officers come in here and say "bad area" and they can say "bad area" and it's never going to change.
And ten years from now when your kids or grandkids are around it's going to be a bad area. Why is it not going to change? Because we rely on people to do what they're asking you to do, not judge it with your common sense and what was said and what the law says and the facts and circumstances but to judge it because he's a felon.
You want to stop people from getting stabbed because [their] friends were in a fight with a couple of guys?
[Defense Counsel]: That's way outside the record.
The Court: The jury will recall the evidence.
[Prosecutor]: You want to stop them, stop people from getting their submachine guns?
[Defense Counsel]: He's made an argument outside the record.
The Court: Sustained. Rephrase.
[Defense Counsel]: I ask the jury be instructed to disregard that comment.
The Court: Like I said, the jury will disregard — what the lawyers says is not evidence. Disregard the last statement by the prosecutor.
[Defense Counsel]: I respectfully move for a mistrial.
The Court: Denied.Appellant's argument is specifically directed to the italicized argument above. He argues the trial court sustained the objection, and that his counsel moved for a jury instruction that was granted and moved for a mistrial that was not granted. However, the record shows that appellant pursued to an adverse ruling his objection to the underlined argument above, which he does not challenge on appeal. We conclude the trial court's statement that "[t]he jury will recall the evidence" as to the complained-of argument is not sufficient to preserve error. See DeRusse, 579 S.W.2d at 235; Mayberry, 532 S.W.2d at 84. Because nothing is presented for review, we resolve appellant's fifth issue against him.