Opinion
No. 05-04-00959-CR
Opinion Issued April 5, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-35470-NW. Affirmed.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
OPINION
Tyshon Deon Hillary appeals his conviction for the capital murder of Ali Adawi. After finding appellant guilty and that he used or exhibited a deadly weapon during commission of the offense, the jury assessed punishment at life confinement. In three points of error, appellant claims the evidence is legally and factually insufficient to support his conviction and the trial judge erred in overruling his objections to the State's use of peremptory challenges. We affirm the trial court's judgment.
Sufficiency of the Evidence
In his first and second points of error, appellant contends the evidence is legally and factually insufficient to support his conviction because the State failed to prove appellant committed the crime. Under these points, he claims there is no evidence tying him to Ali's murder or the scene of the offense. We disagree. When reviewing challenges to the legal sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195 (2003). Viewing the evidence in the light most favorable to the verdict, we determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 2005 WL 600310, at *6 (Tex.Crim.App. Mar. 16, 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), cert. denied, 2005 WL 695742 (Mar. 28, 2005); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003); Santellan v. State, 939 S.W.2d 155, 160 (Tex.Crim.App. 1997). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000); Thomas v. State, 3 S.W.3d 89, 92 (Tex.App.-Dallas 1999), aff'd, 65 S.W.3d 38 (Tex.Crim.App. 2001). In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla, 143 S.W.3d at 817 (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). The question under a factual sufficiency challenge is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. Evidence can be factually insufficient if (i) the evidence is too weak to support the finding of guilt beyond a reasonable doubt or (ii) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). A person commits the offense of capital murder if he intentionally or knowingly causes the death of an individual in the course of committing or attempting to commit the offense of robbery. Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(2) (Vernon 2003 Supp. 2004-05). Although appellant claims the evidence is legally insufficient to support his conviction because there is no evidence tying him to the murder or the scene of the offense, we disagree. Abdel Adawi, the nephew of the deceased, testified he was working with his uncle at the First Stop convenience store in Irving on July 26, 2003. In preparation for closing the store that night, he and his uncle counted the money in a back room, then walked back into the main part of the store. At that point, appellant walked in the store, followed by a second man. Both men were carrying guns. Although the men had pantyhose pulled over their faces, Abdel identified appellant in open court as the man with the longer gun. Abdel testified the picture of appellant's face "stays in my mind since that day." Neither appellant nor his companion spoke; they just began shooting. According to Abdel, appellant's companion shot his uncle, and appellant shot him. The companion asked about the money, and Ali told him to take it. Abdul was shot for the third time at which point he passed out. When he regained consciousness, he called 9-1-1. He saw his uncle lying on the floor, either unconscious or dead. Lisa Epps testified she was driving home from her boyfriend's place around midnight on July 26, 2003 when she heard two pops. She looked to see what had caused the noise and saw a heavyset man stumble out of a store and fall. Another man, wearing a dark-colored nylon Nike wind suit, a light blue visor, and what appeared to be surgical gloves, followed the first man out of the store. The second man was carrying a long, narrow, black object in his hands. He stood in the doorway for a few seconds, then went over to the man on the ground. The second man leaned over the first one. According to Epps, it "looked like he touched him;" the man then ran away. Irving police officer Eric Mosby arrived at the scene that night and recovered shell casings and a blue visor from the store and parking lot. While investigating the crime, Detective Mark Talley received an anonymous phone call from a female caller who provided details of the crime that had not been made public. The caller, later identified as Erica McMillian, lived with her husband in the apartment complex behind the convenience store. She provided information leading to the arrests of her husband Dereck McMillian, appellant, and Cory Arnold. Having discovered appellant's and Arnold's involvement in the offense, the police obtained a search warrant for the apartment where both men were living with appellant's cousin, Shambrica Hillary, in East Dallas. When the police arrived to execute the warrant, a pornographic video was playing on the television, indicating someone had just left. In the apartment, the police found a revolver, a rifle, and some clothing with blood stains. The clothing seized included a pair of blue cotton sweat pants, a pair of blue wind pants, and a pair of green wind pants. Detective Talley also testified that, at the time of the offense, appellant was on an electronic monitor. The electronic monitoring device records establish that appellant left the apartment in East Dallas at 10:54 p.m. Saturday night, July 26, 2003, and reentered the following morning at 12:26. Shambrica testified appellant moved in with her around April 11, 2003 because he had an electric monitor and needed to live in a place with telephone access. They lived at the apartment with Shambrica's three young children. Around the same time that appellant moved in, appellant's friend, Arnold, also moved in. Arnold never had a key to the apartment but appellant did. On one occasion, Shambrica found a .22 caliber gun in her bedroom closet. She told them to get the gun out of her apartment. According to Shambrica, she never saw the gun in her apartment again. She testified appellant and Arnold had a friend named "Scooby," who drove a white four-door Caprice sedan. She saw a longer gun in the trunk of Scooby's car. Shortly before the murder, Arnold stopped living with them. On the night of the murder, Shambrica fell asleep on the couch around eleven o'clock while watching television with appellant. She woke up late the next morning. On August 6, 2003, appellant went to the store but never returned. The following day, Shambrica got up, cleaned the apartment, and got ready for work. She locked the door to her apartment and left. Later, while at work, she received a phone call which caller identification showed as being from her house. She answered, thinking it was appellant. It was Arnold who asked where appellant was. Shambrica said she did not know. When she asked Arnold how he got in her apartment, Arnold hung up. Later that day, Shambrica got another call telling her the police had searched her apartment. According to Shambrica, she did not have guns or pornography at the apartment and did not know how they got there. Shambrica testified the blue visor was appellant's. She identified the clothing as hers, stating that she had allowed Arnold and appellant to wear her clothes while they were living with her. Arnold usually wore the dark blue wind pants and the green wind pants while appellant preferred the blue cotton sweats. Heather Thomas, a firearms examiner at Southwest Instituted of Forensic Sciences (SWIFS), testified she examined the revolver and the rifle seized from Shambrica's apartment. The six bullets and four fired cartridges she received for testing all came from the rifle. Evelyn Ridgley, a forensic biologist at SWIFS, testified she examined the visor, clothing, and weapons. Appellant was excluded from being a contributor to the DNA located on the revolver. The DNA found on the rifle, the rifle magazine, the green wind pants, the blue wind pants, the blue cotton sweats, and the blue visor could not exclude appellant as a contributor. Ridgley testified she found Ali's DNA in the blood found on the rifle and the clothing but not the visor. In short, the evidence most favorable to the judgment shows Abdel identified appellant as the man with the longer gun who entered the convenience store and shot him on July 26, 2003. Ebbs testified she saw a man wearing a visor with a long black object approach a man on the ground outside the convenience store. Police found Ali on the ground outside the convenience store and the visor in the parking lot. And the DNA analysis of the visor, the clothing, and rifle could not exclude appellant. After viewing this evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction for capital murder. We overrule appellant's first point of error. We reach a similar conclusion with respect to appellant's second point in which he claims the evidence is factually insufficient in that there is no evidence tying him to the murder or the scene of the offense. The jury was the factfinder in this case and, as such, was entitled to believe or disbelieve each witness's testimony. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude, after reviewing the evidence in this case in a neutral light, that the jury was rationally justified in finding guilt beyond a reasonable doubt. The State's evidence was not too weak to support the finding of guilt beyond a reasonable doubt. Furthermore, contrary evidence, strong enough that the beyond-a-reasonable-doubt standard could not have been met, does not exist. We therefore conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second point of error.Batson Challenge
See Batson v. Kentucky, 476 U.S. 79 (1986).
a prima facie case that a venireperson was excluded on the basis of race. Then, the prosecution must come forth with race-neutral reasons for exercising the peremptory challenge. The defendant has the opportunity to rebut those reasons. The burden of persuasion remains with the defendant. Finally, the judge rules on whether the neutral reasons given for the peremptory challenge were contrived to conceal racially discriminatory intent.Jasper, 61 S.W.3d at 421. In reviewing the explanation given by the State for striking a potential juror, we look at the facial validity of the explanation. See Purkett v. Elem, 514 U.S. 765, 768 (1995). Race neutral reasons for exercising a peremptory strike include striking a potential juror because he (i) has health problems that could affect his service as a juror, (ii) individually has, or has relatives who have, criminal records or have otherwise been "in trouble with the law," or (iii) responds that he needs more than one eyewitness to believe a defendant guilty. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999) (striking potential juror because she vacillated in opinion and had relative facing drug prosecution); Pondexter v. State, 942 S.W.2d 577, 581 (Tex.Crim.App. 1996) (striking venire person due to health problems); Chambers v. State, 866 S.W.2d 9, 25 (Tex.Crim.App. 1993) (striking venire person whose brother was convicted felon); Vargas v. State, 838 S.W.2d 552, 555 (Tex.Crim.App. 1992) (striking venire person who stated she needed more than one eyewitness to convict and others who had been arrested previously or had relatives arrested or convicted of crimes). The prosecutor stated he struck juror 24, an African-American female, because she had a criminal history. He stated he struck juror 23, an African-American male, because he (i) had an inflammation of the brain and spine, requiring he walk with a cane, and (ii) stated he would require more than one eyewitness to convict. Appellant then argued the reasons were pretext; he did not offer any evidence to rebut the State's explanations or show the explanations were merely a sham or pretext. The judge disagreed, ruled the prosecutor's reasons were racially neutral, and overruled appellant's objection. Examining the record in the light most favorable to the trial judge's ruling, we conclude the State articulated race neutral reasons for striking both jurors. The prosecutor's explanations did not reflect an inherently discriminatory intent. And appellant, who disagreed with the State's reasoning, did not attempt to rebut the State's reasons by offering evidence or questioning the prosecutor about his reasoning. Because the trial judge's finding that the prosecutor's explanations were race-neutral is supported by the record, we cannot conclude the trial judge erred. See Simpson, 119 S.W.3d at 268. We overrule appellant's third point of error.
We affirm the trial court's judgment.