No. 13-03-277-CR
Opinion Delivered and Filed: August 12, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 377th District Court of Victoria County, Texas.
Before Justices HINOJOSA, YAÑEZ, and CASTILLO.
Opinion by Justice CASTILLO.
A jury found appellant Chance Emmitt Givens guilty of aggravated assault. It assessed punishment at twelve years in the Institutional Division of the Texas Department of Criminal Justice and assessed a $5,000 fine. The trial court has certified that Givens has the right of appeal. See TEX. R. APP. P. 25.2(a)(2). By two issues, Givens challenges the legal and factual sufficiency of the evidence to sustain his conviction. We affirm.
See TEX. PEN. CODE ANN. §§ 22.01(a)(1), 22.02(a)(2) (Vernon Supp. 2004). Certain amendments to sections 22.01 and 22.02 became effective after the date of this offense. However, the provisions under which the State charged Givens remained unchanged. Accordingly, we cite to the current version of the statute.
I. RELEVANT FACTS
This is a memorandum opinion not designated for publication. The parties are familiar with the facts. We will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. See TEX. R. APP. P. 47.4. The victim, Jose Olvera, told the jury Givens shot him on August 1, 2002. A neighbor testified she saw Givens shooting a gun several times that evening. She watched Olvera run away from Givens and then saw Olvera laying on the driveway. A friend of Givens saw Givens fire shots in the air. He also watched Olvera run away from Givens. The friend walked away. He heard shouting and turned around. He saw Olvera laying on the driveway. The friend did not see Givens shoot Olvera. Investigating officers told the jury they did not recover any weapons at the scene. They found several spent shell casings from two different weapons. A spent shell casing they recovered after another shooting on the same street matched some of the casings they recovered after the Olvera shooting. Another person had pleaded guilty to the crime connected to that shell casing. No weapon was found at the scene of that crime, either. The officers found no fingerprints on any of the shell casings. Since they did not recover a weapon, they were unable to determine what weapon fired the round that wounded Olvera. A paramedic testified that Olvera's wound was a life-threatening injury. A surgeon testified that Olvera's left leg had to be amputated above the knee after the shooting. Givens told the jury he had been in the neighborhood earlier that morning. However, at the time of the shooting that evening, Givens testified, he was at a motel with a female friend. He denied shooting Olvera. II. SUFFICIENCY OF THE EVIDENCE
In his first and second issues, Givens contends the evidence is legally and factually insufficient to support his conviction for aggravated assault with a deadly weapon. He focuses on the shell casings found at the scene of Olvera's shooting that matched one found after the earlier shooting. He argues that the State produced no scientific evidence connecting the round that wounded Olvera with the matching shell casings. We turn to the standards and scope of our legal-sufficiency review. A. Legal-Sufficiency Analysis 1. Legal-Sufficiency Standard and Scope of Review
A legal-sufficiency challenge calls for appellate review of the relevant evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). We consider all the evidence that sustains the conviction, whether properly or improperly admitted or whether introduced by the prosecution or the defense, in determining the legal sufficiency of the evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001). Similarly, in reviewing the legal sufficiency of the evidence, we look to all of the evidence introduced during either stage of the trial. De Garmo v. State, 691 S.W.2d 657, 661 (Tex.Crim.App. 1985). Legal sufficiency in this case is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim. App. 1997). A hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. A hypothetically correct jury charge would not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex.Crim.App. 2001). Its scope is limited by "the statutory elements of the offense . . . as modified by the charging instrument." Fuller v. State, 73 S.W.3d 250, 254 (Tex.Crim.App. 2002) (Keller, P.J., concurring) (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App. 2000)). When a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged. Fuller, 73 S.W.3d at 255; Curry, 30 S.W.3d at 404. This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime. Malik, 953 S.W.2d at 240. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7. In performing a legal-sufficiency review, we are mindful that the fact finder is the exclusive judge of the credibility of witnesses and the weight to be given testimony. TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979); Adelman v. State, 828 S.W.2d 418, 423 (Tex.Crim.App. 1992); Butts v. State, 835 S.W.2d 147, 151 (Tex. App.-Corpus Christi 1992, pet. ref'd). The fact finder may believe some witnesses and refuse to believe others. Esquivel v. State, 506 S.W.2d 613, 615 (Tex.Crim.App. 1974). It also may accept portions of a witness's testimony and reject others. Id.; Butts, 835 S.W.2d at 151. If we reverse a criminal case for legal insufficiency following a jury trial, we reform the judgment to reflect conviction for a lesser offense only if: (1) we find that the evidence is sufficient to support conviction of the lesser offense; and (2) a jury charge on the lesser offense was either submitted or requested but denied. Collier v. State, 999 S.W.2d 779, 782 (Tex.Crim.App. 1999) (plurality op.) (discussing circumstances under which court of appeals may reform judgment following jury trial to reflect conviction for lesser offense); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993) (clarifying same). Otherwise, we vacate the judgment of conviction for legal insufficiency and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95. 2. The Hypothetically Correct Jury Charge a. The Indictment
The indictment stated, in pertinent part: CHANCE EMMITT GIVENS . . . on or about the 1st day of August A.D., 2002, . . . did then and there intentionally, knowingly, and recklessly cause bodily injury to JOSE OLVERA, by shooting the said JOSE OLVERA with a firearm, and the said Defendant used and exhibited a deadly weapon, to-wit: a firearm, during the commission of said assault.
b. The Elements of Aggravated Assault as Limited by the Indictment
One of the ways a person commits assault is by intentionally, knowingly, or recklessly causing bodily injury to another. Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon Supp. 2004); Ferrel v. State, 55 S.W.3d 586, 589 (Tex.Crim.App. 2001). A person commits aggravated assault by committing assault as defined in section 22.01 and (2) causing serious bodily injury or (3) using or exhibiting a deadly weapon during commission of the assault. TEX. PEN. CODE ANN. § 22.02(a)(1), (2) (Vernon Supp. 2004); Green v. State, 831 S.W.2d 89, 93 (Tex. App.-Corpus Christi 1992, no pet.). Therefore, the hypothetically correct jury charge for this case would ask the jury if Givens: (1) intentionally, knowingly, or recklessly (2) caused (3) bodily injury (4) to Olvera (5) by shooting Olvera with a firearm and (6) used or exhibited a deadly weapon, namely a firearm, (7) during the assault. We turn to relevant definitions. c. Definitions Used in the Aggravated Assault Statute
Aggravated assault by causing serious bodily injury is a "result of conduct" offense. Mendenhall v. State, 15 S.W.3d 560, 567 (Tex. App.-Waco 2000), aff'd on other grounds, 77 S.W.3d 815 (Tex.Crim.App. 2002); Brooks v. State, 967 S.W.2d 946, 950 (Tex. App.-Austin 1998, no pet.). Thus, the definitions in the hypothetically correct jury charge in this case concerning the applicable culpable mental state should be limited to the result of the conduct, rather than the nature of the conduct or the circumstances surrounding the conduct. A person acts intentionally, or with intent, with respect to a result of conduct by having a conscious objective or desire to cause the result. TEX. PEN. CODE ANN. § 6.03(a) (Vernon 2003). A person acts knowingly, or with knowledge, with respect to a result of conduct when the person is aware the conduct is reasonably certain to cause the result. TEX. PEN. CODE ANN. § 6.03(b) (Vernon 2003). "Bodily injury" means physical pain, illness, or any impairment of physical condition. TEX. PEN. CODE ANN. § 1.07(a)(8) (Vernon 2003); Nunez v. State, 117 S.W.3d 309, 323 (Tex. App.-Corpus Christi 2003, no pet.). "Deadly weapon" is defined as anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. TEX. PEN. CODE ANN. § 1.07(a)(17)(B) (Vernon 2003). A firearm is a deadly weapon per se. TEX. PEN. CODE ANN. § 1.07(a)(17)(A) (Vernon 2003); Hill v. State, 913 S.W.2d 581, 590 (Tex.Crim.App. 1996). "Serious bodily injury" is bodily injury that creates a substantial risk of death or causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any "bodily member or organ." TEX. PEN. CODE ANN. § 1.07(a)(46) (Vernon 2003); Nunez, 117 S.W.3d at 323. 3. Measuring the Legal Sufficiency of the Evidence against the Hypothetically Correct Jury Charge
Olvera identified Givens as the man who shot him with a firearm. Other eyewitnesses placed Givens at the scene before, during, and immediately after the shooting. Olvera suffered the permanent loss of his leg as a result of the shooting. Viewing the evidence in the light most favorable to the State, we conclude that any rational trier of fact could have found beyond a reasonable doubt that Givens assaulted Olvera and either intentionally, knowingly, or recklessly caused serious bodily injury to him or used or exhibited a firearm during the assault. See Jackson, 443 U.S. at 319; see also Johnson, 23 S.W.3d at 7. Accordingly, we hold the evidence legally sufficient to support Givens's conviction for aggravated assault. See Jackson, 443 U.S. at 319; see also Johnson, 23 S.W.3d at 7. We overrule Givens's first issue. B. Factual-Sufficiency Analysis 1. Factual-Sufficiency Standard and Scope of Review
This Court measures the factual sufficiency of the evidence in this case against a hypothetically correct jury charge. Adi v. State, 94 S.W.3d 124, 131 (Tex. App.-Corpus Christi 2002, pet. ref'd); see Malik, 953 S.W.2d at 240. We are constitutionally empowered to review the judgment of the trial court to determine the factual sufficiency of the evidence used to establish the elements of the charged offense. Johnson, 23 S.W.3d at 6. In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Id. at 6-7 (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim. App. 1996)). We set aside a finding of guilt only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 7. A clearly wrong and unjust finding of guilt is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Rojas v. State, 986 S.W.2d 241, 247 (Tex.Crim.App. 1998). In conducting a factual-sufficiency review, we review the fact finder's weighing of the evidence. Johnson, 23 S.W.3d at 7 (citing Clewis, 922 S.W.2d at 133). We review the evidence that tends to prove a material disputed fact and compare it with evidence that tends to disprove it. Johnson, 23 S.W.3d at 7. We are authorized to disagree with the fact finder's determination. Id. However, we approach a factual-sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder. Id. Our evaluation should not intrude substantially on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id. We always remain aware of the fact finder's role and unique position, a position we are unable to occupy. Id. at 9. Exercise of our authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice. Id. Otherwise, we accord due deference to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Id. Every fact need not point directly and independently to the accused's guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex.Crim. App. 1981). A finding of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Id. When an appellant challenges the factual sufficiency of the elements of the offense, we ask whether "a neutral review of all the evidence . . . demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex.Crim.App. 2003) (quoting Johnson, 23 S.W.3d at 11); see Swearingen, 101 S.W.3d at 97. In conducting a factual-sufficiency review in an opinion, we "show our work" when we consider and address the appellant's main argument for urging insufficiency of the evidence. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003); Johnson, 23 S.W.3d at 9; Manning v. State, 112 S.W.3d 740, 747 (Tex. App.-Houston [14th Dist.] 2003, no pet. h.); see TEX. R. APP. P. 47.1. This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Sims, 99 S.W.3d at 603; Manning, 112 S.W.3d at 747. If we reverse a criminal case for factual insufficiency, we vacate the judgment of conviction. Clewis, 922 S.W.2d at 133-34. We remand for a new trial a criminal case reversed for factual insufficiency, so a second fact finder has the chance to evaluate the evidence. Swearingen, 101 S.W.3d at 97. 2. Measuring the Factual Sufficiency of the Evidence against the Hypothetically Correct Jury Charge
In addition to the evidence discussed in our legal-sufficiency analysis, the record reflects that Givens testified he was not in the neighborhood at the time of the shooting. Rather, he was in a hotel room with a female friend. Further, no gun was found at the scene. A casing found at another crime scene matched some of those recovered after the Olvera shooting, but no evidence connected Givens to the shell casings. Nor did any evidence tie Givens to the other crime. In fact, another person had been convicted of that crime. Nonetheless, the jury could have concluded that the credibility of the eyewitnesses' testimony outweighed any question raised by the matching shell casings. See Esquivel, 506 S.W.2d at 615. Viewing all the evidence neutrally, favoring neither the prosecution nor Givens, we find that proof of Givens's guilt of aggravated assault is not so obviously weak as to undermine confidence in the jury's determination. See Zuliani, 97 S.W.3d at 593-94. Nor do we find that the proof of his guilt is greatly outweighed by contrary proof. See id. We overrule Givens's second issue. III. CONCLUSION
Having overruled both of Givens's issues, we affirm the judgment and sentence of the trial court.