No. 05-07-01133-CR.
Opinion Filed August 6, 2008. DO NOT PUBLISH.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F07-00683-SK.
Before Justices FitzGerald, Richter, and Lang-Miers.
Opinion By Justice FITZGERALD.
A jury convicted Richard Wade Fisher of murder. The trial court assessed punishment, enhanced by two prior felony convictions, at forty-five years' imprisonment. In two issues, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
On July 14, 2006, Allen Kearney died from multiple blunt force injuries after being beaten by appellant. Dr. Lynn Salzberger, who performed an autopsy on Kearney, testified Kearney stood five feet, eight inches tall, weighed ninety pounds, and had multiple bruises, tears, and scrapes on his head, face, truck and limbs. Kearney also had internal bruises on several different areas of his brain, his adrenal glands, pancreas, and chest muscles, and had twelve rib fractures, some of which punctured his lung. The pattern of the injuries were consistent with some type of "long, thin hard object" being used, and the object was used as a deadly weapon. Toxicology screening showed Kearney had methamphetamine in his blood, but no other drugs or alcohol. Salzberger testified that either the head injuries alone or the trunk injuries alone would have been enough to cause Kearney's death. Cody Casey testified he was in Kearney's house when appellant attacked Kearney. Casey and others were in Kearney's house while Kearney went to the store. Appellant came into the house at about 8:30 p.m. and ordered a woman to leave. The woman initially left, but reentered the house when Kearney returned from the store. When Kearney saw appellant in the house, he told appellant to leave because appellant was not paying any rent. Kearney called the landlord on his cell phone and handed the phone to appellant. Appellant hung up the phone, then sat down on the couch. Kearney went into his bedroom and closed the door. Five minutes later, appellant went into the kitchen, came out with a "table leg or something wooden" in his hand and kicked open Kearney's bedroom door. Casey did not see appellant hit Kearney, but he heard sounds of "someone being hit with an object." Casey jumped up and ran to the bedroom. He saw Kearney lying on the floor and appellant "going crazy" swinging the wooden table leg in a fit of rage. When appellant turned towards the door, Casey and his girlfriend ran from the house. Magan Kuhlenbeck, Casey's girlfriend, testified she saw appellant come out of the kitchen carrying a "maroon-colored table leg or a bat" in his hand. Appellant kicked open Kearney's bedroom door and hit a mirror and a lamp with the table leg. Kuhlenbeck did not see appellant hit Kearney with the table leg, but she heard sounds of someone hitting skin with an object. Shaunesse Smith testified she went into Kearney's bedroom to ask for a cigarette. After Kearney had shut the bedroom door, appellant kicked it open. Appellant had a "machete" in his hand. Appellant looked at Kearney and said, "[W]ell, now let's see who." Smith screamed and ran out of the house. Smith did not actually see appellant hit Kearney with the machete. Debra Tincher is Casey's aunt. Tincher testified that on July 14, 2006, she drove Kearney around to do some errands and shopping. When they returned to Kearney's house, Tincher saw Casey, Kuhlenbeck, and appellant sitting on the couch. When Kearney saw appellant inside the house, he called the landlord on his cell phone, then handed the phone to appellant. Appellant smiled, hung up the phone, and handed it back to Kearney. At that point, Tincher left the house to get the landlord to get appellant out of the house. Tincher did not see appellant hit Kearney. Donald Casey testified he is Tincher's brother and Cody Casey's father. After Casey told him that appellant "beat up" Kearney, Donald drove to Kearney's house and saw Kearney lying partially on the floor and on the bed. Kearney said appellant attacked him from behind. Donald drove back to his house before the police arrived on the scene because he had a gun with him and did not want to go to jail, and he was afraid appellant would try to get his son. A short time after he returned home, Donald saw appellant walking down the alley near his property. Donald told appellant not to come onto his property because he had "already beat his friend to death." Appellant said he "didn't think he had beat him that bad." Appellant pulled a "sword-like object or machete" from behind his back. Another friend came outside Donald's house and chased after appellant. Appellant left the premises. Detective Tommy Raley interviewed appellant on August 2, 2006. Raley testified appellant said he and Kearney had a "physical altercation," and appellant beat Kearney with his hands. Appellant later said he beat Kearney with a wooden object, but was not sure what object he used. Appellant said he knew he hurt Kearney, but he did not think he killed him. A DVD recording of appellant's interview with Raley was played for the jury. During that interview, appellant admitted he beat Kearney. Appellant said he used a wooden object to hit Kearney "a few times" in the head, but denied he hit Kearney's body or limbs. Appellant said Kearney was alive and well when he left. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). 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). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). 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); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); 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 be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). To obtain a conviction for murder, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the death of Kearney by striking him with deadly weapons- his hand, a wooden object, and a sword-or intended to cause serious bodily injury to Kearney and committed an act clearly dangerous to human life and thereby caused the death of Kearney. See Tex. Penal Code Ann. § 19.02(b) (Vernon 2003). A "deadly weapon" was defined as anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. See Tex. Penal Code Ann. § 1.07(a)(17) (Vernon Supp. 2007). Discussion
Appellant argues the evidence is legally and factually insufficient because he had no intent to kill Kearney. Appellant asserts his acts were not intentional, and if he is guilty of anything, he is guilty of the lesser-included offense of assault. The State responds that the evidence is legally and factually sufficient to support appellant's conviction for murder. The specific intent to kill may be inferred from the use of a deadly weapon. See Flanagan v. State, 675 S.W.2d 734, 744 (Tex.Crim.App. 1984). When a deadly weapon is used in a deadly manner, the inference is almost conclusive that the appellant intended to kill. See Godsey v. State, 719 S.W.2d 578, 581 (Tex.Crim.App. 1986). There was evidence that appellant beat Kearney with a wooden object causing multiple blunt force injuries which resulted in Kearney's death. Appellant admitted to the police that he used a wooden object to beat Kearney, but claimed Kearney was alive when he left the house. It was the jury's function to evaluate the credibility of the witnesses and the evidence. See Lancon, 253 S.W.3d at 705. We must afford due deference to a jury's determination. See Marshall, 210 S.W.3d at 625. The jury was free to accept or reject any and all of the evidence presented by either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). Viewing the evidence under the proper standards, we conclude it is legally and factually sufficient to support appellant's murder conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92. We resolve appellant's issues against him. We affirm the trial court's judgment.