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Brown v. State

Court of Appeals of Texas, Fifth District, Dallas
Mar 30, 2005
No. 05-04-00872-CR (Tex. App. Mar. 30, 2005)

Opinion

No. 05-04-00872-CR

Opinion Filed March 30, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 86th District Court, Kaufman County, Texas, Trial Court Cause No. 21206.

Affirm.

Before Justices BRIDGES, O'NEILL, and MAZZANT.


MEMORANDUM OPINION


Appellant Anthony Quincy Brown appeals his conviction for murder. After finding appellant guilty, the jury assessed punishment at life confinement and a $5,000 fine. In three points of error, appellant generally contends the evidence is legally insufficient to support his conviction and the trial court erred in excluding relevant testimony. For the following reasons, we affirm the trial court's judgment. The grand jury indicted appellant for capital murder alleging he caused the death of Rodney Earl Early, by shooting him with a firearm, while in the course of committing or attempting to commit robbery. At trial, the State presented evidence that appellant shot the victim because the victim had stolen money from him. The jury, failing to find appellant killed the victim in the course of a robbery, found appellant guilty of the lesser included offense of murder. In his first point of error, appellant contends the trial court erred in denying his motion for instructed verdict. At the conclusion of the State's case-in-chief, appellant moved for an instructed verdict of not guilty on the capital murder charge asserting there was no evidence he committed the murder in the course of robbery. The trial court denied the motion. In this point, appellant asserts it was error to do so. A complaint regarding the denial of a motion for instructed verdict is a challenge to the legal sufficiency of the evidence to support a conviction. McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App. 1997). Thus, appellant is asserting the evidence insufficient to support a capital murder conviction. However, the jury did not find appellant guilty of capital murder. Because appellant was not convicted of capital murder, it is immaterial whether the trial court should have entered an instructed verdict on that charge. We overrule appellant's first point of error. In his second point of error, appellant contends the evidence is legally insufficient to show he had the intent to commit murder. In this point, appellant does not dispute the evidence is sufficient to show he shot and killed the victim. Appellant asserts only that there is "no evidence" he had the specific intent to kill because the only evidence regarding appellant's intent showed he shot in self-defense. Initially, we note appellant did not request that a self defense charge be given to the jury, the jury was not charged on self defense, and appellant does not contend on appeal such a charge should have been given. Instead, he seems to argue that because there was some evidence that he shot the victim in self-defense, he could not have intended to kill him. We disagree. Evidence establishing self-defense does not necessarily negate the intent to kill — rather it shows the killing was justified. See, e.g., Tex. Pen. Code Ann. §§ 9.31, 9.32 (Vernon 2003); Mittem v. State, 145 S.W.3d 225, 228 (Tex.Crim.App. 2004). Moreover, the jury could infer appellant had the intent to kill from evidence he shot and killed the victim. See Flanagan v. State, 675 S.W.2d 734, 744 (Tex.Crim.App. 1984); Jackson v. State, 115 S.W.3d 326, 329 (Tex.App.-Dallas 2003, pet. granted). We overrule appellant's second point of error. In his third point of error, appellant contends the trial court erred in excluding testimony. At trial, appellant's girlfriend Nakia Ronetta McDonald testified for the defense. McDonald testified that on the day of the offense, she got into an argument with appellant and "pushed" him. Trial counsel asked if appellant hit or pushed her back. The witness testified without objection that appellant had "never" hit her. Trial counsel again asked whether appellant had ever hit McDonald and she responded "never." The prosecutor then objected to relevance and the trial court sustained the objection. The prosecutor did not then request an instruction to disregard and the jury was not so instructed. On appeal, appellant asserts the trial court erred in "excluding" McDonald's testimony because it was relevant to show appellant lacked a propensity towards violence. However, McDonald was able to testify without objection that appellant had never hit her. Only after she reiterated this testimony did the State object. Although the trial court sustained the objection, the jury was not instructed to disregard the testimony. Thus, evidence appellant had never struck his girlfriend was before the jury and appellant was not harmed by the trial court's ruling sustaining the State's objection. See Johnson v. State, 925 S.W.2d 745, 750 (Tex.App.-Fort Worth 1996, pet. ref'd); Rodriguez v. State, 903 S.W.2d 405, 410 (Tex.App.-Texarkana 1995, pet. ref'd); see also Wiltz v. State, 827 S.W.2d 372, 374 (Tex.App.-Houston [1st Dist.] 1992), rev'd on other grounds, 863 S.W.2d 463 (Tex.Crim.App. 1993). We overrule appellant's third point of error.

We affirm the trial court's judgment.


Summaries of

Brown v. State

Court of Appeals of Texas, Fifth District, Dallas
Mar 30, 2005
No. 05-04-00872-CR (Tex. App. Mar. 30, 2005)
Case details for

Brown v. State

Case Details

Full title:ANTHONY RAY QUINCY BROWN, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 30, 2005

Citations

No. 05-04-00872-CR (Tex. App. Mar. 30, 2005)

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Ex Parte Brown

The Fifth Court of Appeals affirmed his conviction. Brown v. State, No. 05-04-00872-CR (Tex.App.-Dallas,…