Opinion
No. 05-02-01200-CR.
Opinion Filed November 4, 2003. Do Not Publish Tex.R.App.P. 47.
Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-00986-WU. AFFIRM.
Before Justices MORRIS, O'NEILL, and LANG.
OPINION
Appellant appeals his conviction for manslaughter. After finding appellant guilty, the jury assessed punishment at fifteen years' confinement. In two points of error, appellant contends (1) the indictment was invalid, and (2) the evidence is factually insufficient to support his conviction. For the following reasons, we affirm the trial court's judgment. The grand jury indicted appellant for murder under two theories. First, it alleged appellant intentionally and knowingly caused the victim's death by shooting the victim with a firearm. Second, the indictment alleged appellant committed felony murder by committing the felony offense of deadly conduct by intentionally discharging a firearm at one more individuals, and in the course of that offense, committed an act clearly dangerous to human life that caused the victim's death. Appellant filed a motion to quash the indictment alleging the second paragraph was invalid because the felony offense of deadly conduct could not support a felony murder charge. Under section 19.02(b)(3) of the penal code, a person commits felony murder if he "commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual." See Tex. Pen. Code Ann. § 19.02(b)(3) (Vernon 2003). The court of criminal appeals has held that a conviction under 19.02(b)(3) will not lie if the underlying felony is either manslaughter or a lesser included offense of manslaughter. Johnson v. State, 4 S.W.3d 254, 258 (Tex.Crim.App. 1999). In this case, appellant asserts the felony murder portion of the indictment is invalid because the underlying felony alleged, deadly conduct, is a lesser included offense of manslaughter. An offense is a lesser included offense if (1) it is established by proof of the same or less than all the facts required to establish the commission of the charged offense, (2) it differs from the charged offense only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission, (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission, or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. See Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). The question presented is whether deadly conduct, as alleged in this case, is a lesser included offense of manslaughter. A person commits manslaughter if he recklessly causes the death of an individual. See Tex. Pen. Code Ann. § 19.04 (Vernon 2003). To support a conviction for felony deadly conduct, on the other hand, the State must prove, among other things, that appellant knowingly discharged a firearm at one or more individuals. See Tex. Pen. Code Ann. § 22.05(b)(1) (Vernon 2003). Thus, the offense of felony deadly conduct required proof of one or more elements (discharging a firearm at one or more individuals) and also required proof of a higher culpable mental state (knowingly and intentionally) than were necessary to support a conviction for manslaughter. See Yandell v. State, 46 S.W.3d 357, 361 (Tex.App.-Austin 2001, pet. ref'd). Consequently, felony deadly conduct is not a lesser included offense of manslaughter. Id. Appellant also suggests felony deadly conduct could not be used to support his felony murder conviction because, in this case, the conduct supporting the deadly conduct conviction was the same conduct that caused the death of the victim. However, the only offenses that cannot be used as the underlying felony for felony murder are manslaughter and lesser included offenses of manslaughter. Lawson v. State, 64 S.W.3d 396, 397 (Tex.Crim.App. 2001); Johnson, 4 S.W.3d at 258; Yandell, 46 S.W.3d at 360-61. Because felony deadly conduct is not a lesser included offense of manslaughter, the indictment was not invalid. Yandell, 46 S.W.3d at 360-61. We overrule appellant's first point of error. In his second point of error, appellant contends the evidence is factually insufficient to support his conviction. When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, our duty is to examine the jury's weighing of the evidence. Scott v. State, 934 S.W.2d 396, 398 (Tex.App.-Dallas 1996, no pet.). We must, however, be appropriately deferential to the jury's findings so as to avoid substituting our judgment for that of the jury. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). We reverse only if: (1) the evidence is so weak that the verdict is clearly wrong and unjust, or (2) the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 11. In this point, appellant asserts the evidence is factually insufficient to support his conviction because no jury could rationally conclude he fired the bullet that killed the victim. The evidence at trial showed that the victim in this case and a friend of appellant's, Renato Marquez, were both killed at a graduation party. The evidence was undisputed that the victim was shot and killed in the backyard at the party. It was also undisputed that (1) the bullet that killed the victim was fired from a .22 caliber rifle, and (2) appellant fired the .22 caliber rifle at the party. Appellant nevertheless asserts the evidence is factually insufficient because he presented evidence that Marquez, his friend that was also killed that night, also shot the murder weapon at the party. However, the only testimony appellant directs us to that supports his theory was contradictory and was elicited from appellant's friends. Furthermore, crime scene investigators determined the murder weapon was fired only a single time in the porch area of the backyard, the area from which the fatal bullet would have come. Two of the State's witnesses identified appellant as the person that fired the weapon from that location. One of these witnesses, Crystal Pessina, was a friend of appellant's and only reluctantly admitted that she saw appellant shoot the gun while on the porch. Another witness, Jessica Perez, who did not know appellant, identified appellant as the person that shot the gun while on the porch. Appellant attempts to discredit Perez's testimony because she did not know whether she was going to be able to identify him. However, when Perez saw appellant at trial, she realized she could in fact identify him. Moreover, one witness testified she overheard appellant talking to a friend after the shooting saying "I killed him. Tomorrow I'm turning myself in." Although the friend denied the conversation took place, the jury was entitled to resolve inconsistencies in the testimony. After reviewing all the evidence, we cannot conclude the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule appellant's second point of error and affirm the trial court's judgment.
Appellant also relies on evidence presented outside the jury's presence to show the jury's verdict was clearly wrong and unjust. In a factual sufficiency review, we analyze the jury's weighing of the evidence. See Scott, 934 S.W.2d at 398. It follows that in performing this task, we consider only evidence that was presented to the jury.