No. 05-08-00976-CR
Opinion filed June 26, 2009. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F06-73667-UL.
Before Justices WRIGHT, BRIDGES, and FRANCIS.
Opinion By Justice BRIDGES.
Curtis Donnell Benson waived a jury and pleaded not guilty to murder. After finding appellant guilty, the trial court assessed punishment, enhanced by prior felony convictions, at forty-five years' imprisonment. In three points of error, appellant contends the evidence is legally and factually insufficient to "disprove self-defense" and to show his conduct was not justified, and the trial court lacked jurisdiction to hear the case and render judgment. We affirm.
Legal and Factual Sufficiency Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). We review all the evidence in the light most favorable to the verdict and assume the trier of fact resolved any conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex.Crim.App. 2007). A review of the evidence for legal sufficiency does not involve a re-weighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S.Ct. 282 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). The State is not required to affirmatively produce evidence to refute a defendant's self-defense claim; it must prove its case beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Self-defense is an issue of fact to be determined by the fact finder. See id. at 913. A guilty verdict is an implicit finding rejecting a defendant's self-defense theory. See id. at 914. When a defendant challenges the factual sufficiency of the evidence to support the rejection of a defense, we review all of the evidence in a neutral light to determine whether the State's evidence taken alone is too weak to support the finding of guilt beyond a reasonable doubt and whether the evidence supporting the defense is strong enough that the rejection of the defense does not meet the beyond a reasonable doubt standard. See Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003). The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the death of Antoine Crittendon by shooting him with a firearm, a deadly weapon. See Tex. Penal Code Ann. § 19.02 (Vernon 2003). A person is justified in using deadly force against another if he reasonably believes deadly force is necessary to protect himself against the other's use or attempted use of unlawful deadly force, and a reasonable person in the actor's situation would not have retreated. See Act of May 27, 1995, 74th Leg., R.S., ch. 235, § 9.32, 1995 Tex. Gen. Laws 2141 (amended 2007) (current version at Tex. Penal Code Ann. § 9.32(a) (Vernon Supp. 2008). Evidence Presented
Appellant does not dispute the fact that at or about 12:20 a.m. on December 14, 2006, he shot Crittendon in the chest, killing him. At trial and on appeal, appellant claims he shot Crittendon in self-defense because he believed Crittendon had a gun. Shunner Tucker testified she called appellant "Little C" and did not actually know his true name. Tucker testified she was in the backseat of appellant's vehicle when appellant shot Crittendon. Prior to the shooting, Tucker and Misty Samuels had been in appellant's car while he parked at a nearby apartment complex. The windows were rolled down. Samuels argued with appellant about being at the complex because appellant had a previous "falling out" with some men who lived there. Appellant drove to a nearby gas station and let Samuels out of the car. After leaving the station, appellant drove down the street and stopped at a stop sign. Tucker saw Crittendon walking toward the station. Tucker testified that Crittendon was not wearing a coat and he did not have anything in his hands. Tucker was about to say "hello" to Crittendon, but appellant pulled his car in front of Crittendon, pulled a gun from his waistband, and fired one bullet through the open passenger-side window. Tucker ducked down. Appellant got out of the car, fired the gun again, then got back in the car. After the first gunshot, Crittendon ran toward a nearby motel. Tucker testified there were no words exchanged between appellant and Crittendon before appellant fired the gun. When Tucker asked appellant why he shot Crittendon, appellant said Crittendon had stolen a gun from him. After the shooting, appellant drove to a nearby store and let Tucker out of the car. Because she was afraid, Tucker did not go to the police department and talk with a detective until December 18, 2006. Tucker testified she had prior convictions for aggravated assault, prostitution, and fraud. Misty Samuels testified she knew appellant's name but referred to him as "Little C." Samuels had been in the front passenger seat of appellant's car and Tucker was in the back seat. As they sat parked at an apartment complex, Samuels argued with appellant about the fact that men who had previously clashed with appellant lived at the complex. She told appellant to let her out of the car. Appellant drove to a nearby gas station, Samuels got out, and appellant sped away. After a few seconds, Samuels heard two gunshots. Samuels testified she knew Crittendon sometimes carried a gun, as most of the men in the neighborhood did, but he did not "walk around with one." Samuels testified she had prior felony convictions for prostitution and possession of a controlled substance. Austin Brown, the night manager at Motel 3, testified he knew appellant as "Little C." On December 14, 2006, Brown was putting carpeting in a room when he saw Crittendon running down the motel's driveway yelling, "[H]elp, help, I've been shot." When Brown realized Crittendon had been shot, he called 911. Crittendon repeatedly said "Little C" had shot him. Brown stayed with Crittendon until the police arrived. Brown testified he did not see any weapons on or around Crittendon, and he did not recall seeing Crittendon wearing a long coat. Detective Paul Ellzey interviewed Tucker, Samuels, and Brown, each of whom told him "Little C" murdered Crittendon. Each of the them identified appellant's picture from a photographic lineup as the person they knew by the name "Little C." Ellzey determined the shooting had occurred at or about 12:20 a.m., and appellant had been stopped and arrested by a Dallas County constable at 6:45 a.m. The murder weapon was never recovered. Several people in the neighborhood where the shooting occurred told Ellzey that Crittendon was a "nickel-and-dime dope runner." Ellzey testified that throughout his investigation, he did not receive any evidence from any source that Crittendon had a weapon at the time appellant shot him. Crittendon had no history of violence, and there was no evidence of any past physical conflict between Crittendon and appellant, although they had a conflict involving narcotics. Ellzey did not believe appellant shot Crittendon in self-defense because Crittendon was on foot and appellant, who was in a vehicle, could have driven away at any time. Crittendon was near appellant's vehicle only because appellant pulled up next to him and motioned for Crittendon to approach, according to neighborhood witnesses. Dr. Amy Gruszecki, a medical examiner, testified Crittendon sustained one gunshot wound to the right chest, causing him to "bleed out" within several minutes. There was no soot or gunpowder residue around the wound, indicating Crittendon was at least twelve to eighteen inches away from the muzzle of the firearm. The toxicology tests showed Crittendon's blood was positive for cocaine at the time of his death. Gruszecki testified the clothing with Crittendon's body included a black coat with fur around the hood. Carmen Carey and Kimberly Jones testified on appellant's behalf. Carey told the court that Crittendon caused her to be evicted from her apartment because he brought stolen property to the apartment. Carey said that although she was not with either Crittendon or appellant on the day of the shooting, she knew that Crittendon carried a gun. Jones, who is the mother of appellant's three children, testified she knew Crittendon carried a gun, as did most of the men in the neighborhood, including appellant. Jones testified Crittendon was not a peaceful person, and Tucker was not trustworthy. Jones did not see Crittendon on the day he was killed. Appellant testified he and Crittendon had an argument on November 20, 2006, during which Crittendon broke his jaw. Appellant went to Parkland Hospital and had his jaw wired shut. Before the fight, both he and Crittendon sold drugs together. On December 14, 2006, appellant picked up Samuels and Tucker and drove to an apartment complex. Samuels was in the front passenger seat and Tucker was in the back seat. When Samuels asked him to drop her off, he did so at a nearby gas station. Tucker remained in the back seat. After leaving the station, appellant approached the intersection of Bonnieview and Overton, when the car's engine stopped. Appellant saw Crittendon running toward them. Appellant pulled out his gun and fired at Crittendon through the open passenger-side window. Appellant denied that he got out of the car and fired a second time at Crittendon. Appellant testified he feared for his life and believed Crittendon might have the gun Crittendon had previously stolen from him. Appellant testified Crittendon was wearing a long coat, and one of his hands was not visible to appellant. After appellant fired the gun once, the car's engine started again. Appellant drove to a nearby store and dropped off Tucker. Later that morning, appellant was stopped by a constable for going the wrong way on a one-way street. Appellant admitted he gave the constable a fake name. During cross-examination, appellant testified that when he talked with Ellzey at the jail, he lied because he was scared. Because Ellzey said he would give appellant a gunshot residue test to tell whether or not appellant had fired a gun, appellant told Ellzey that he had fired the gun before it was used by a man named "Young Gun" to kill Crittendon. After the killing, appellant dropped off "Young Gun" and then disposed of the firearm by throwing it off a bridge. Appellant testified he actually resold the gun to a man in the neighborhood. Appellant testified he had prior convictions for unlawful possession of a firearm by a felon and aggravated assault. Discussion
In his first two points of error, appellant contends the evidence is legally and factually insufficient to show his conduct was not justified because Crittendon wore a long coat and had one hand concealed, Crittendon approached appellant's vehicle, and due to a prior fight with Crittendon, appellant believed Crittendon intended to shoot him. The State responds the evidence is legally and factually sufficient to support the trial court's rejection of appellant's self-defense claims and support the conviction. There was conflicting evidence presented. According to Tucker, there were no words exchanged between Crittendon and appellant before appellant fired the gun, and Crittendon was walking down the street toward the gas station when they first saw him. Tucker said appellant pulled his vehicle in front of Crittendon and immediately fired the gun. Appellant testified his vehicle's engine stopped and he saw Crittendon running toward him. Because he was in fear for his life, he pulled out his gun and shot Crittendon before Crittendon had a chance to shoot him. As the fact finder in this case, it was the trial judge's role to reconcile the conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). Viewing all of the evidence under the proper standard, we conclude it is legally and factually sufficient to support appellant's conviction. See Roberts, 220 S.W.3d at 524; Vodochodsky, 158 S.W.3d at 509. We overrule appellant's first two points of error. Trial Court's Jurisdiction
In his third point of error, appellant argues the trial court lacked jurisdiction because the case was not properly transferred to its docket. Appellant contends the indictment was returned in the 291st Judicial District Court, but there is no order transferring the case to the Criminal District Court No. 5, where the case was heard and the judgment rendered. The State responds that appellant has failed to preserve his complaint. We agree with the State. Appellant did not raise the issue of the absence of a transfer order in the trial court. Consequently, appellant's complaint, raised for the first time on appeal, is untimely. See Sharkey v. State, 994 S.W.2d 417, 419 (Tex.App.-Texarkana 1999, no pet.). Further, such a transfer is not required by law. See Bourque v. State, 156 S.W.3d 675, 678 (Tex.App.-Dallas 2005, pet. ref'd.). We overrule appellant's third point of error. We affirm the trial court's judgment.