No. 05-02-01226-CR, No. 05-02-01227-CR
Opinion Filed August 4, 2003 Do Not Publish Tex.R.App.P. 47
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 380-80979-01, 380-80980-01 AFFIRMED
Before Justices WRIGHT, MOSELEY and FRANCIS.
Opinion By Justice Moseley.
A jury convicted Kristi Ann Henley of murder. Thereafter, without benefit of a plea bargain agreement, she pleaded guilty in the trial court to the offense of unlawful possession of a firearm by a felon. The trial court assessed punishment in both causes at 25 and 10 years' confinement respectively, and ordered the sentences to run concurrently. Appellant brings appeal in both cases. In her first four issues in the murder case, appellant asserts that the evidence was legally and factually insufficient to establish 1) the culpable mental state required for the offense, and 2) that she encouraged, directed, aided, or attempted to aid another in the commission of the offense. In her fifth and final issue in the murder case, appellant asserts that the trial court committed jury charge error when it did not limit the definition of the culpable mental state to the result of appellant's conduct instead of the conduct itself. In the unlawful possession of a firearm by a felon case, the appellant raises two issues concerning improper enhancement paragraphs and a clerical error in the judgment. The background of the cases and the evidence adduced at trial are well-known to the parties; thus we do not recite them here in detail. Because all dispositive issues are clearly settled in the law, we issue this memorandum opinion pursuant to Tex.R.App.P. 47.1. We affirm the judgment of the trial court in the murder case, and we affirm the judgment of the trial court in the unlawful possession of a firearm by a felon case after modifying the judgment to correct two clerical errors.
The Murder Case
Factual and Legal Sufficiency When reviewing the legal sufficiency of the evidence to support a criminal conviction, the critical inquiry is whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Chambers v. State, 866 S.W.2d 9, 15 (Tex.Crim.App. 1993). The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319 (emphasis in original); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App. 1995). We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). See also Gollihar v. State, 46 S.W.3d 243, 256 (Tex.Crim.App. 2001) (A hypothetically correct charge need not incorporate allegations in the indictment that give rise to "immaterial variances."). In conducting a factual sufficiency review, we determine whether a neutral review of all the evidence, both for and against the finding, demonstrates that: (1) the evidence of guilt is so obviously weak as to undermine confidence in the fact finder's determination; or (2) the evidence of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000). Under either review, the fact finder is the sole judge of the weight and credibility of witness testimony. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). The fact finder resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from the facts. Dumas v. State, 812 S.W.2d 611, 615 (Tex.App.-Dallas 1991, pet. ref'd). A person commits murder if he intentionally or knowingly causes the death of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. See Tex. Pen. Code Ann. § 19.02(b)(1), (2) (Vernon 2003). Further, a person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Tex. Pen. Code Ann. § 7.01 (Vernon 2003). A person is criminally responsible for an offense committed by another if, with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen. Code Ann. § 7.02(a) (Vernon 2003). The record includes evidence that appellant and the deceased were romantically involved in a stormy relationship. On the night of the murder, and after their previously purchased supply of methamphetamine ran out, the two drove to a drug dealer's house to purchase more of the drug. Appellant took another friend and her baby along. During the ride, appellant and the intoxicated decedent began to argue. Decedent struck appellant. Appellant drew a gun, and held it in her hand the rest of the way to the dealer's house. After their arrival, the decedent began to argue with the drug dealer, and ultimately, struck him. Appellant then gave the gun to the drug dealer who shot and killed the decedent. The trial testimony revealed that appellant wanted to end her relationship with the decedent, and had fired shots at him two weeks before his death. Having considered the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Mason, 905 S.W.2d at 574. Further, reviewing the evidence in a neutral light, we cannot say the evidence of guilt is so obviously weak as to undermine confidence in the fact finder's determination or the evidence of guilt is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 10-11. We overrule appellant's first four issues. Jury Charge In her fifth issue, appellant asserts that the trial court committed error in the jury charge when it failed to limit the culpable mental state to the result of appellant's conduct, as opposed to the conduct itself. See Cook v. State, 884 S.W.2d 485 (Tex.Crim.App. 1994). The Texas Penal Code defines culpable mental states in terms of the three conduct elements that can be involved in an offense: (1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct. Tex. Pen. Code Ann. § 6.03 (Vernon 2003). Murder falls in the second category: it is a "result of conduct" offense. E.g., Black v. State, 26 S.W.3d 895, 897 (Tex.Crim.App. 2000). Appellant complains that the trial court's definitions of "intentionally" and "knowingly" were not limited to the standards for offenses involving the result of the defendant's conduct. We agree that the court's definitions included language concerning offenses involving the nature of the defendant's conduct. We also agree this failure to limit the definitions to the relevant conduct element was error. See, e.g., Cook, 884 S.W.2d at 491. ("It is error for a trial judge to not limit the definitions of the culpable mental states as they relate to the conduct elements involved in the particular offense."). Appellant did not object to the definitions in the charge. Accordingly, any error in those definitions is only reversible if appellant was egregiously harmed by it such that she was denied a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). To determine the actual degree of harm we look to the entire record, the jury charge and the state of the evidence as a whole, taking into account the contested issues and the weight of probative evidence. Id. Here, the application paragraphs of the jury charge specifically limited the applicable mental states to the appropriate conduct element, i.e., the death of the victim, which was the result of the conduct at issue. We conclude appellant was not harmed egregiously by any error in failing to limit the mental-state definitions to the appropriate conduct elements. We overrule appellant's fifth issue in the murder case. The Unlawful Possession of a Firearm by a Felon Case
Enhancements In her first issue in the unlawful possession of a firearm by a felon case, appellant asserts that the trial court erred by improperly using a prior conviction to enhance the range of punishment when the same prior conviction was used to prove an essential element of the charged offense. The third degree felony offense of unlawful possession of a firearm by a felon by a felon requires proof that the possessor had a prior felony conviction. Tex. Pen. Code Ann. § 46.04 (Vernon 2003). In this case, the indictment alleged two prior felony convictions. Of these two, one was also used to support the primary allegation that appellant was a felon. The conviction that was used to prove an element of the offense could not also be used to enhance the range of punishment. E.g., McWilliams v. State, 782 S.W.2d 871 (Tex.Crim.App. 1990); Ramirez v. State, 527 S.W.2d 542 (Tex.Crim.App. 1975). The judgment in this case shows that appellant was convicted of "Felony Enhanced/2nd." The judgment also recites that the plea and findings concerning the enhancements were "true." However, the record in this case shows that the trial judge specifically found only the second enhancement paragraph true. A third degree felony with one prior felony enhancement carries a second degree felony punishment range. Tex. Pen. Code Ann. § 12.42(a)(3) (Vernon 2003). A third degree felony with two prior felony enhancements carries a punishment range of 25 to 99 years' imprisonment, or life imprisonment. Tex. Pen. Code Ann. § 12.42(a)(3) (Vernon 2003). The record indicates that appellant was admonished she faced a second degree felony punishment range, and she was in fact sentenced within the second degree punishment range. If the trial judge had found both enhancements true, and sentenced appellant to 10 years' confinement, the sentence would be below the minimum prescribed for the offense. Because the trial judge orally stated he only found the second enhancement paragraph true, but the judgment itself could be interpreted to indicate that both enhancements were found true, the judgment will be modified to reflect that only the second enhancement paragraph was found true. Ex parte Madding, 70 S.W.3d 131, 135 (Tex.Crim.App. 2002) (oral pronouncement of sentence trumps inconsistent written judgment). Further, because appellant was actually only enhanced once, and that conviction was not used to prove her status as a convicted felon, appellant's first issue is overruled. Clerical Error
Regarding appellant's second issue in the unlawful possession of a firearm by a felon case, appellant and the State agree that the judgment erroneously indicates that appellant had a plea bargain agreement when in fact she entered an open plea to the trial court. The record supports this assertion. The judgment is modified to reflect that appellant entered an open plea to the trial court, and that she did not do so with the benefit of a plea bargain agreement. Appellant's second issue is sustained. We affirm the trial court's judgment in the murder case, and we affirm the trial court's judgment in the unlawful possession of a firearm by a felon case, as modified. JIM MOSELEY, JUSTICE