Opinion
No. 05-09-01239-CR
Opinion Filed April 5, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F08-20521-1K.
Before Justices RICHTER, FRANCIS, and MYERS.
OPINION
A jury convicted appellant of the murder of Melissa Evans and assessed punishment at twenty-five years' imprisonment. The trial court made an affirmative deadly weapon finding. In three issues on appeal, appellant challenges the sufficiency of the evidence and asserts the trial court committed egregious error in failing to instruct the jury on the definition of voluntariness. Concluding appellant's arguments are without merit, we affirm the trial court's judgment. In his first two issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction for murder. The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). This standard requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at 899 (citing Jackson v. Virginia, 443 U.S. at 319). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Id. Therefore, we will conduct a single review of appellant's sufficiency complaints under the Jackson standard. Appellant's sufficiency challenge is premised on his contention that neither the testimony nor the physical evidence establish his conduct was voluntary. According to appellant, the evidence pertains to his mental state rather than the physical conduct requisite to the establishment of a voluntary act. Section 6.01 (a) of the penal code provides that "a person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession." Tex. Penal Code Ann. § 6.01(a) (West 2003). "Voluntariness" within the meaning of section 6.01(a) refers only to one's physical bodily movements. Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003); Brown v. State, 89 S.W.3d 630, 633 (Tex. Crim. App. 2002). The issue of voluntariness of one's conduct, or bodily movements, is separate from the issue of one's mental state. Adanandus v. State, 866 S.W.2d 210, 230 (Tex. Crim App. 1993). The "voluntary act" requirement does not necessarily go to the ultimate act, but means only that criminal responsibility for the harm must include an act that is voluntary. See Rogers, 105 S.W.3d at 638. Appellant met Evans about a month prior to the offense. Although the two were not dating, they were "talking" and having sex. Evans provided appellant's best friend, A.D. Eaton, with a place to stay. Satura Hillburn, Eaton's girlfriend, provided child care for Evans. Consequently, appellant, Eaton, and Hillburn were at Evans's apartment on a frequent basis. On the evening in question, Evans planned to sell a gun she had purchased two weeks earlier. When she was unable to do so, she decided to sell her television instead. Eaton, Hillburn, appellant, and Hillburn's cousin, Keandra Taylor, were in Evans's apartment talking, watching television, and "chillin." Evans and appellant left the apartment to sell the television. Testimony differs as to what transpired when appellant and Evans endeavored to sell the television. But there is no dispute that at some point in the evening, Evans purchased bullets for the gun at Wal-Mart and thirteen of the bullets were loaded into the gun. There is also conflicting testimony about whether Evans and appellant initially purchased forty ounce containers of malt liquor for the group when they first left the apartment, or whether they returned to the apartment and went back out again. At some juncture, however, appellant and Evans returned to the apartment and distributed the malt liquor to the group. Evans's children had been put to bed. Appellant removed the loaded gun from his pocket and placed it on the dining room table. The box containing the remaining bullets was also placed on the table. Eaton and Hillburn moved to the living room, where they had a "romantic interlude." In the meantime, appellant was carrying on text message conversations on his cell phone with both Evans and Taylor. Three days earlier, appellant had "hooked up" with Taylor and had sex with her. Taylor inquired whether appellant was in an exclusive relationship with Evans and he replied that he was not. Taylor then invited appellant to come over to Hillburn's house later that night, and sent a text message stating "she must got you on lock." Appellant sent a text message in reply stating, "No ho has me on lock. I can do whatever I want because I'm not in a relationship with nobody." Instead of responding to Taylor, however, appellant inadvertently sent the message to Evans. When Evans received the text message intended for Hillburn, she became very upset and ran out of the apartment. She returned seconds later and confronted appellant stating, "So, I'm a ho now?" Appellant tried to explain that he was not calling her a "direct ho," but Evans was extremely agitated. Eaton testified that Evans then reached for the gun, but appellant grabbed it first to prevent her from getting it. Evans, who was five feet tall, tried to grab the gun from appellant, who is six feet four inches tall. Appellant fired a warning shot into the ceiling, but Evans did not calm down. When appellant tried to leave, Evans became combative and confrontational and was "in [appellant's] face." Appellant used his left hand to keep Evans away while holding the gun in his right hand, aimed at Evans' "neck area." Then Evans slapped the gun, causing it to go off and hit her neck. Evans's oldest son Elijah offered conflicting testimony about the fatal shot. According to Elijah, after he heard a "pop," he opened the bedroom door and saw appellant holding Evans. Evans was squirming and yelling "let me go." Elijah stated that appellant held the gun to Evans' neck and shot her. Appellant also testified, and offered a third version of the shooting. Appellant said he grabbed the gun because he always took it with him when he left Evans' apartment. After he did so, Evans told him he could not leave with her gun, and demanded that he give it to her. According to appellant, because the gun was so small, he had to place his finger on the trigger. When he raised the gun into the air, Evans reached for it, and he "tensed up and barely touched the trigger." As a result, the gun "accidentally fired." Appellant stated that Elijah walked into the living room at that time, so he put the gun in his pocket. After Elijah went back into his room, appellant took the gun out of his pocket and began walking towards the door in an attempt to leave. As he did so, Evans tried to pull the gun out of his hand. Appellant stated that he then "yanked" the gun, causing it to accidentally go off and hit Evans. Although appellant admitted his finger was on the trigger, he claimed he did not realize it due to the gun's shape and size. Dr. Jeffrey Barnard, Chief Medical Examiner for Dallas County conducted the autopsy and testified Evans died as a result of injuries sustained from the gunshot wound to her neck. Dr. Barnard testified he observed black soot-like material around the entrance wound on Evans's neck, evidencing that the weapon was in contact with the skin upon discharge. Dr. Barnard also observed the soot-like substance on Evans left index finger and palm, indicating that her hand was near the barrel of the gun when it fired. Appellant's reliance on his own testimony as conclusively establishing his conduct was not voluntary is misplaced. The jury's function is to resolve conflicts in the evidence, and the jury is free to accept or reject any or all of the evidence presented by either side. Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979). Thus, the jury was free to reject appellant's claim that the fatal shot was non-volitional and resulted from Evans grabbing his arm. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (jury free to believe all, some, or none of testimony presented). Despite appellant's claim, there was evidence from which the jury could reasonably find that the shooting was the result of appellant's deliberate volitional act. Although appellant insists the gun discharged accidentally because he was unaware of the sensitivity of the trigger, the jury was free to assess the likelihood that appellant was unaware of what he was doing both times the gun discharged. Viewing the evidence under the proper standard, we conclude it is sufficient to support appellant's conviction. Appellant's first two issues are overruled. In his third issue, appellant asserts the trial court committed egregious error by failing to instruct the jury on voluntariness. Appellant's briefing provides no citations to the record or legal authority to support this contention. An appellant's brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and the record. Tex. R. App. P. 38.1(i). This requirement is not satisfied by merely uttering brief, conclusory statements unsupported by legal citations. See Rhodes v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (concluding global reference to Sixth Amendment constituted inadequate briefing); King v. State, 17 S.W.3d 7, 23 (Tex. App-Houston [14th Dist.] 2000, pet. ref'd). Significantly, the trial court did instruct the jury on voluntariness. To the extent appellant intended to complain about the instruction, the issue is inadequately briefed and therefore waived. See id. Appellant's third issue is resolved against him. The trial court's judgment is affirmed.
The jury was instructed to acquit appellant of the indicted offense of murder if it believed that the discharge of the gun was not the result of a voluntary act by appellant.