No. 05-04-01581-CR
Opinion Filed November 21, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F98-53443-JV. Affirmed.
Before Justices WHITTINGTON, FRANCIS, and LANG.
Opinion By Justice LANG.
Adrian Alexander appeals the trial court's judgment convicting him of capital murder and sentencing him to life imprisonment. Alexander raises five issues on appeal that essentially argue three points: (1) the evidence is factually insufficient to support his capital murder conviction; (2) the trial court erred when it admitted evidence of an extraneous offense; and (3) the trial court erred when it failed to charge the jury on the lesser included offense of felony murder. Alexander's issues are decided against him. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Zackery Fuller, a drug dealer, encountered Trey Joe, an old acquaintance, at a convenience store. They exchanged numbers because Trey Joe was part of a music group called the "Bonton Pick" and Fuller wanted to produce music. Later, Trey Joe and Alexander, whose street name was Trey Six, went to Fuller's apartment to discuss music. Prior to Alexander's arrival at Fuller's apartment, Fuller and Alexander had not been formally introduced. Trey Joe and Alexander knew Fuller sold drugs. A few days later, in the evening, while Fuller and Tasha Lewis, his fiancee, were watching television, Alexander knocked on the back door of their apartment. Lewis went into the kitchen, answered the door, told Fuller it was Alexander, and asked if she should let him in. Fuller believed Alexander was there to buy drugs and told her to let him in. Alexander followed Lewis into the living room holding an assault rifle and ordered Fuller and Lewis to lie on the floor. Fuller and Lewis complied. Alexander was wearing a hooded, black leather jacket over a red suit and had gold rings on every finger. Waving the assault rifle, Alexander demanded the "dope" and money. Fuller gave him the drugs and $25, the only money he had. Alexander became angry and said, "It's going to get bloody." Fuller told Alexander that was all they had and, in response, Alexander shot Lewis. Then, Alexander shot at Fuller, but missed. Alexander tried to shoot at Fuller a second time but the assault rifle jammed. Fuller rushed at Alexander. As they struggled over the assault rifle, they went into the kitchen, knocking the water cooler over. Fuller got the rifle away from Alexander and threw it out through back door, which was still open. They continued fighting, going out through the back door and down the stairs. As they were fighting, Alexander's hooded, black leather jacket came off. When they reached the bottom of the stairs, Fuller held Alexander, intending to do so until the police arrived. However, Fuller began to worry about Lewis. Fuller let Alexander go, ran back to the apartment and, then, ran across the street to the fire station to get a paramedic. A paramedic returned with Fuller to the apartment, but Lewis was already dead. The police arrived at the scene. On the back stairs, the police found a black hood, and a black leather jacket with crack cocaine, $31, and package of cigarettes in the pocket. Also, the police found a .30 caliber M-1 carbine, semiautomatic rifle at the foot of the back stairs, a gold ring on the sidewalk, and a set of keys in the grass. Embedded in the apartment floor, the police found the bullet that passed through Lewis's head and a second bullet. Two empty shell casings were found on the sofa and the floor. The police observed that the water cooler in the kitchen had been knocked over. Fuller provided the police with a description of the shooter, whom he knew only as Trey Six. The next day the police obtained information that the shooter's name was Adrian Alexander. A detective assembled a photographic array and showed it to Fuller who identified Alexander. Three weeks later, the police arrested Alexander in Bryan, Texas. Alexander was indicted for capital murder. The jury found Alexander guilty and the trial court assessed his punishment at life imprisonment because the State did not seek the death penalty. Alexander appealed, and the Corpus Christi Court of Appeals reversed the trial court's judgment and remanded the cause for a new trial. See Alexander v. State, 88 S.W.3d 772 (Tex.App.-Corpus Christi 2002, pet. ref'd). Alexander was tried a second time. The second jury found him guilty of capital murder and the trial court again assessed his punishment at life imprisonment. This appeal follows Alexander's second trial. II. FACTUAL SUFFICIENCY
In his first and fifth issues, Alexander argues the evidence is factually insufficient to support his capital murder conviction. A. Standard of Review
There is only one question to be answered by the reviewing court in a factual sufficiency review: 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, 485 (Tex.Crim.App. 2004). A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997). First, deference is given to the findings of the fact finder; the evidence will not be reweighed. Id. at 407; see Martinez v. State, 129 S.W.3d 101, 106 (Tex.Crim.App. 2004); Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). Second, a finding of factual insufficiency must be supported by a detailed explanation because the fact finder can accept witness testimony or reject it. Id. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Third, all of the evidence is viewed in a neutral light. Zuniga, 144 S.W.3d at 481; see Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The evidence weighed by the fact finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997). This standard is applied to both circumstantial and direct evidence. King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App. 2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999); Smith v. State, 895 S.W.2d 449, 452 (Tex.App.-Dallas 1995, pet. ref'd). Reversal for factual insufficiency occurs only when: (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based on the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 144 S.W.3d at 484-85; cf. Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. 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. 2005). A person commits murder if he intentionally or knowingly causes the death of an individual. See Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003 Supp. 2005). The State must prove that a defendant intended to kill beyond a reasonable doubt. A person acts intentionally when it is his conscious objective or desire to engage in the conduct or cause the result. See Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003 Supp. 2005). The intent to kill may be inferred from the use of a deadly weapon in a deadly manner. See Adanandus v. State, 866 S.W.2d 210, 215 (Tex.Crim.App. 1993); see also Johnson v. State, 959 S.W.2d 284, 288 (Tex.App.-Dallas 1997, pet. ref'd). If a deadly weapon is used in a deadly manner, the inference of an intent to kill is almost conclusive. See Adanandus, 866 S.W.2d at 215. A rifle is a deadly weapon, and when used by a defendant, an intent to kill is presumed. See Williams v. State, 567 S.W.2d 507, 509 (Tex.Crim.App. 1978) (discussing a pistol). C. Application of the Law to the Facts
Alexander argues the evidence is factually insufficient to support his capital murder conviction for two reasons: (1) the State failed to offer credible or reliable testimony to prove he was the shooter or otherwise involved in the murder; and (2) the State failed to prove he intentionally caused the death of Lewis. The State responds that the jury weighed Fuller's live testimony against his affidavit and Alexander's actions and words were sufficient to support the jury's finding that he intentionally killed Lewis. 1. Identity of the Shooter
To support his claim that the State failed to offer credible or reliable testimony to prove he was the shooter or otherwise involved in the murder, Alexander argues we should focus on six contradictions in Fuller's testimony: (1) Fuller stated in his affidavit he gave his beeper number to Alexander, but at trial he stated he gave the number to Trey Joe; (2) Fuller stated in his affidavit he told the shooter he did not have any "dope," but at trial he stated he did not tell the shooter he did not have any drugs; (3) Fuller made no mention in his affidavit that the shooter had gold teeth, but at trial he stated the shooter had "a full gold grid"; (4) Fuller stated he was lying on the floor near Lewis, but a detective testified he did not see any blood on Fuller; (5) Fuller testified he returned to the apartment before going to the fire station and saw Lewis's lips move, but the medical examiner testified the gunshot wound was consistent with immediate death; and (6) Fuller testified the rifle jammed, but the firearm examiner stated the rifle was in proper working order. Alexander also argues the absence of the following evidence supports his argument that he was not the shooter: (1) there was no fingerprint evidence linking him to the shooting and Fuller did not testify the shooter was wearing gloves; (2) the gold ring and keys were never linked to Alexander, and Alexander was not asked to try the gold ring on; (3) the leather coat was not shown to be unique and Alexander was not asked to try the coat on; (4) the State did not call Trey Joe as a witness or explain why he was absent. The record shows Fuller explained the inconsistency between his affidavit, which states he told the shooter he did not have any "dope" and his trial testimony that he did not tell the shooter he did not have any drugs. Fuller stated he was scared and was not in his right mind because he had just seen Lewis killed. Although Fuller did not mention in his affidavit that the shooter had gold teeth, the detective stated she obtained a description of the shooter from Fuller which included the information that the shooter had several gold teeth. Although the firearm examiner stated the rifle was functional, he also stated there was a blown primer which could explain a malfunction. 2. Intent to Cause the Death of Lewis
To support his claim that the State failed to prove he intentionally caused the death of Lewis, Alexander argues the evidence supports the alternative hypothesis that Lewis was shot while he and Fuller struggled over the rifle. He points to the firearm examiner's testimony that the rifle could have malfunctioned when the gunman and Fuller struggled over the rifle as evidence of this alternative hypothesis. The record shows the firearm examiner stated the rifle's malfunction could have been caused by several things. The firearm examiner provided the following possible explanations for the weapon's malfunction: (1) the primers were blown in some of the unused ammunition; (2) the magazine was not functioning properly; (3) the shooter's hand was in the way of the slide preventing it from coming all the way back and completing the normal function of firing the weapon; and (4) people were struggling over the weapon. 3. Discussion
Viewing the evidence in a neutral light, there is ample evidence from which a fact finder could rationally conclude beyond a reasonable doubt that Alexander was guilty of capital murder. It is clear that Alexander's challenge to the factual sufficiency of the evidence is actually an attack on the credibility and weight assigned to the evidence by the jury. The evidence was neither so obviously weak that Alexander's conviction is clearly wrong and manifestly unjust nor was the jury's verdict so contrary to the evidence that the beyond-a-reasonable-doubt burden of proof could not have been met. Alexander's first and fifth issues are decided against him. III. EXTRANEOUS OFFENSE EVIDENCE
In his second and third issues, Alexander argues the trial court erred when it admitted the photographic array containing his "mug shot" from a previous offense because it was evidence of an extraneous offense and its probative value was substantially outweighed by the danger of unfair prejudice. A. Standard of Review
An appellate court reviews a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. See, e.g., Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App. 2003); Powell v. State, 63 S.W.3d 435, 438 (Tex.Crim.App. 2001). Accordingly, an appellate court reviews a trial court's ruling on extraneous offense evidence for an abuse of discretion. See Page v. State, 137 S.W.3d 75, 78 (Tex.Crim.App. 2004). An appellate court shall give deference to a trial court when it decides not to exclude the extraneous offense evidence and finds that the probative value of that evidence is not outweighed by the danger of unfair prejudice. See Moses, 105 S.W.3d at 627. B. Applicable Law
The admissibility of a "mug shot" is a question of degree. Araiza v. State, 929 S.W.2d 552, 555 (Tex.App.-San Antonio 1996, pet. ref'd). A defendant's "mug shot" taken at the time of his arrest for the offense being tried is admissible because its danger of introducing an extraneous offense is vitiated. See Reyes v. State, 579 S.W.2d 927, 928 (Tex.Crim.App. 1979); Ware v. State, 628 S.W.2d 249, 251 (Tex.App.-Fort Worth 1982, pet. ref'd). Conversely, a defendant's "mug shot" from a prior arrest is not admissible because it tends to show the commission of an extraneous offense. See Richardson v. State, 536 S.W.2d 221, 223 (Tex.Crim.App. 1976); see also Smith v. State, 595 S.W.2d 120, 123 (Tex.Crim.App. 1980) (proper procedure to remove all marks showing extraneous offense from photograph). However, if all police identification marks indicating the defendant's "mug shot" was from a prior arrest are removed, it is admissible. See Huerta v. State, 390 S.W.2d 770, 772 (Tex.Crim.App. 1965). Where all police identification marks are removed except for the chain around the defendant's neck or the height measuring device behind the defendant, the "mug shot" is admissible. See Johnson v. State, 583 S.W.2d 399, 403 (Tex.Crim.App. 1979) (chain); Araiza, 929 S.W.2d at 555 (height measuring device). C. Application of the Law to the Facts
When Fuller identified Alexander from a photographic array shown to him by the police, he initialed the back of Alexander's photograph. However, at trial, the photographic array was admitted into evidence over Alexander's objection. The record does not contain Fuller's initials on Alexander's photograph or otherwise indicate which photograph in the array depicts Alexander. The photographic array contains six frontal view "mug shots." Each photograph shows a sign on the individual's chest, which says "SHERIFF DALLAS, TX," or "DALLAS SHERIFF'S OFFICE," and displays a DPD number and a date. None of the dates correspond with the date of Alexander's arrest or indictment in this case. Therefore, the photograph of Alexander indicates a previous arrest before the offense for which he was on trial, implying an extraneous offense. See Richardson, 536 S.W.2d at 223. Accordingly, we conclude the trial court abused its discretion when it admitted the unedited photograph of Alexander. D. Harm Analysis
Having determined that the evidence was erroneously admitted, we must now decide whether the admission of this evidence was so harmful as to require a new trial. Alexander argues he was harmed by the admission into evidence of his "mug shot" because it revealed he was previously arrested for another offense, it caused the jury to give greater weight to Fuller's identification testimony, and it allowed the jury to convict him based on character conformity. The State responds that Alexander was not harmed by the admission into evidence of the "mug shot" because it spent little time addressing the "mug shot," it made no reference to any extraneous offenses, it did not refer to the "mug shot" during its argument, and all of the photographs had similar markings. The State also responds that Alexander was not harmed because, although he attacked Fuller's credibility, Fuller's identification of Alexander as the shooter was corroborated by other evidence and Alexander did not present evidence attacking Fuller's identification testimony. 1. Applicable Law
Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that any error, other than constitutional error, that does not affect substantial rights must be disregarded. Tex.R.App.P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997); see Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002). The erroneous admission of an extraneous offense is nonconstitutional error. See Carter v. State, 145 S.W.3d 702, 707 (Tex.App.-Dallas 2004, pet. ref'd). However, the introduction of an extraneous offense to the jury is inherently prejudicial and harms the defendant because it requires the defendant to defend against not only the offense charged, but also his uncharged actions. See Abdnor v. State, 871 S.W.2d 726, 738 (Tex.Crim.App. 1994); Carter, 145 S.W.3d at 707. Also, the admission of an extraneous offense prejudices the defendant because the jury has a natural inclination to infer guilt for the charged offense from the extraneous offenses. See Abdnor, 871 S.W.2d at 738. An appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in connection with the other evidence in the case. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). A reviewing court may also consider the trial court's instructions to the jury, the State's theory, any defensive theories, and closing arguments. Id. 2. Application of the Law to the Facts
Alexander's "mug shot" was part of a six-photograph spread shown to the victim following the offense. All of the photographs in the array were "mug shots." Alexander does not argue the pretrial identification procedure was impermissibly suggestive or that it tainted Fuller's in-court identification. Although Alexander attacked Fuller's credibility, Fuller remained steadfast in his identification of Alexander. Also, the State did not mention Alexander's previous arrest during its argument. Accordingly, we conclude the trial court's error in admitting into evidence Alexander's "mug shot" was harmless error. Alexander's second and third issues are decided against him. IV. LESSER INCLUDED OFFENSE
In his fourth issue, Alexander argues the trial court erred when it denied his request for the jury charge to include the lesser included offense of felony murder. Specifically, Alexander argues the evidence at trial raised a fact issue regarding whether Lewis was accidently shot during the course of the robbery while Alexander and Fuller struggled over the rifle. The State responds that the evidence shows that no rational jury could have found Alexander guilty of felony murder. A. Standard of Review
An appellate court reviews a trial court's refusal to include a lesser included offense in the jury charge to see if there is some evidence establishing the lesser included offense. See Rousseau v. State, 855 S.W.2d 666, 672 (Tex. 1993). Accordingly, an appellate court reviews all of the evidence presented at trial to determine if the trial court erred by failing to give a charge on a lesser included offense. Id. at 673. Further, when reviewing whether a trial court erred by refusing to include an instruction on a lesser included offense in the jury charge, an appellate court does not address the weight and credibility of the defendant's version of events. See Saunders v. State, 840 S.W.2d 390, 391 (Tex.Crim.App. 1992) ; see also Willis v. State, 936 S.W.2d 302, 307 (Tex.App.-Tyler 1996, pet. ref'd); Mendivil v. State, 812 S.W.2d 629, 631 (Tex.App.-El Paso 1991, no pet.). B. Applicable Law
An offense is a lesser included offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged. See Tex. Code Crim. Proc. Ann. Art. 37.09(1) (Vernon 1981 Supp. 2005); Haywood v. State, 158 S.W.3d 476, 478 (Tex.Crim.App. 2005). A defendant is entitled to a lesser included offense instruction in the jury charge if: (1) the requested charge is a lesser included offense of the offense charged; and (2) there is some evidence that if the defendant is guilty, he is guilty only of the lesser offense. See Haywood, 158 S.W.3d at 478; Rousseau, 855 S.W.2d at 672. However, just because a lesser offense is included within the proof of the offense charged does not mean that a charge on the lesser offense is required. Broussard v. State, 642 S.W.2d 171, 173-74 (Tex.Crim.App. 1982). The evidence must establish that the lesser included offense is a valid rational alternative to the charged offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App. 2001); Arevalo v. State, 943 S.W.2d 887, 889 (Tex.Crim.App. 1997). There are two ways the evidence may indicate that a defendant is guilty only of the lesser offense. Saunders, 840 S.W.2d at 391-92. First, there may be evidence that refutes or negates other evidence establishing the greater offense. Id. Second, the evidence presented may be subject to different interpretations. Id. It is well established that if evidence from any source raises the issue of a lesser included offense, a charge on that offense must be included in the trial court's charge. Id. at 391. However, if a defendant either offers evidence that he committed no offense or presents no evidence, and there is no evidence showing he is guilty only of a lesser included offense, then a charge on a lesser included offense is not required. See Bignall v. State, 887 S.W.2d 21, 22-24 (Tex.Crim.App. 1994). C. Application of the Law to the Facts
Felony murder can be a lesser-included offense of capital murder. Salinas v. State, 163 S.W.3d 734, 741 (Tex.Crim.App. 2005); Rousseau, 855 S.W.2d at 673. The culpable mental state is the only difference between the offense of felony murder and capital murder. Salinas, 163 S.W.3d at 741; Rousseau, 855 S.W.2d at 673. Capital murder requires the intent to commit murder while in felony murder the culpable mental state for murder is supplied by the mental state accompanying the underlying felony. See Salinas, 163 S.W.3d at 741; compare Tex. Pen. Code Ann. § 19.03(a)(2) with § 19.02(b)(3). On this record, we conclude the first part of the test for determining whether a defendant is entitled to an instruction on a lesser offense is satisfied ( i.e., the requested charge is a lesser included offense of the offense charged). See Haywood, 158 S.W.3d at 478; Rousseau, 855 S.W.2d at 672. Because felony murder is included within the proof necessary to establish capital murder, if any evidence exists in the record that would permit a rational jury to find Alexander had only the intent to rob Lewis, then Alexander was entitled to an instruction on felony murder. See Salinas, 163 S.W.3d at 742; Bignall, 887 S.W.2d at 23. The record shows Alexander brought an assault rifle to Fuller and Lewis's apartment, ordered Fuller and Lewis onto the floor, stated "It's going to get bloody," and shot Lewis in the head. Regardless of whether the rifle was fired while Alexander and Fuller struggled over control of the weapon, Alexander's actions were not merely acts clearly dangerous to human life that resulted in death. See Salinas, 163 S.W.3d at 742. On this record, we conclude the second part of the test for determining whether a defendant is entitled to an instruction on a lesser offense is not satisfied ( i.e., there must be some evidence that if the defendant is guilty, he is guilty only of the lesser offense). See Rousseau, 855 S.W.2d at 672. Accordingly, we conclude the trial court did not err when it denied Alexander's request for the jury charge to include the lesser included offense of felony murder. Alexander's fourth issue is decided against him. V. CONCLUSION
The evidence is factually sufficient to support Alexander's capital murder conviction. However, the trial court abused its discretion when it admitted the unedited photograph or "mug shot" of Alexander into evidence, but the error was harmless. Finally, the trial court did not abuse its discretion when it denied Alexander's request for the jury charge to include the lesser included offense of felony murder. The trial court's judgment is affirmed.